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The Delhi High Court has granted bail to six persons  accused in a case relating to the North East Delhi riots, wherein allegedly a mob caused vandalism, lit on fire a sweet shop, as a consequence of which a 22-year old boy namely Dilbar Negi died after sustaining burn injuries.

Justice Subramonium Prasad granted bail to the six accused, namely,  Mohd. Tahir, Shahrukh, Mohd. Faizal, Mohd. Shoaib, Rashid and Parvez.

An FIR was registered against the accused under Sections 147/148/149/302/436/427 of the Indian Penal Code, 1860 in relation to the violence that took place in the National Capital Territory of Delhi in the month of February 2020.

As per the FIR a semi-burnt body was found lying in the corner of the house of the owner of Anil Sweets. The FIR further stated that the deceased seemed to be about 20 years old, and that both the arms and legs of the body were chopped off and the chopped limbs could not be found, and that on inquiry, it was found that the burnt body belonged to a person named Dilbar who was a waiter at the sweet house.

The charge-sheet noted that the incident of the murder of Dilbar Negi was well-planned and was committed with the intention to disrupt law and order, and disturb communal harmony. Moreover, as per the charge-sheet, the CDR of the petitioner placed him at the location of the scene of crime.

Justice Prasad remarked that the issue which arose for consideration in the instant case was that when an offence of murder is committed by an unlawful assembly, then whether each person in the unlawful assembly should be denied the benefit of bail, regardless of his role in the unlawful assembly or the object of the unlawful assembly.

The Court further noted that the Supreme Court has consistently held that in order to convict an accused with the aid of Section 149, a clear finding needs to be given by the Court regarding the nature of unlawful common object.

"Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused, the mere fact that the accused was present or armed would not be sufficient to prove common object", it added.

While granting bail, the court observed that the applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations.

"When there is a crowd involved, at the juncture of grant or denial of bail, the Court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object. There cannot be an umbrella assumption of guilt on behalf of every accused by the Court, and every decision must be taken based on a careful consideration of the facts and circumstances in the matter therein. This principle, therefore, gains utmost importance when the Court considers the question of grant or denial of bail."

It was also noted that the petitioner-accused have been in judicial custody for the past 20-22 months. Thus, the Court opined,

"Bail jurisprudence attempts to bridge the gap between the personal liberty of an accused and ensuring social security remains intact. It is the intricate balance between securing the personal liberty of an individual and ensuring that this liberty does not lead to an eventual disturbance of public order. It is egregious and against the principles enshrined in our Constitution to allow an accused to remain languishing behind bars during the pendency of the trial. Therefore, the Court, while deciding an application for grant of bail, must traverse this intricate path very carefully and thus take multiple factors into consideration before arriving at a reasoned order whereby it grants or rejects bail."

Noting that the charge-sheet indicated that there were currently 72 witnesses who needed to be examined and, therefore, trial in the matter is likely to take a long time, the bench held it would not be prudent to keep the accused persons behind bars for an undefined period of time at this stage.

Cause Title: Mohd Tahir vs State