TaxTMI 
TaxTMI 
2020 (5) TMI 706
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.... has not been filed on record. Ld. APP states however that the complainant's first statement is extracted in-extenso in the FIR itself. 3. Ms. Rebecca M. John, learned senior counsel appearing for the applicant states that firstly, the complainant Mohd. Shanawaz's supplementary statement, upon which the State seeks to rely, does not in any manner identify or connect the applicant to the offences alleged. Secondly, senior counsel contends that no test identification parade was conducted of the applicant to get the complainant to identify him, which ought to have been done in a case such as this, alleging arson by an unlawful assembly. Thirdly, Ms. John contends, that the applicant is a resident of Old Mustafabad which is nearly a 15-minute walk from Mahalaxmi Enclave, where the complainant is said to have run his confectionary shop; and therefore the applicant's presence in the vicinity of the shop cannot be assumed, unless there is evidence to that effect, which there isn't. She also contends that there is nothing on record to show that Ct. Vikas, who is alleged to have seen the applicant committing the offences, was posted and present at the place of the incident.....
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....e witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 9. In Chaman Lal v. State of U.P. (2004) 7 SCC 525 this Court while dealing with an application for bail has stated that certain factors are to be considered for grant of bail, they are: (SCC p. 525) " (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of ....
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....ng him over to the custody of law, and he will then be imprisoned." 21. In Sunil Fulchand Shah v. Union of India (2000) 3 SCC 409 Dr A.S. Anand, learned Chief Justice, in his concurring opinion, observed: (SCC pp. 429-30, para 24) "24. Bail is well understood in criminal jurisprudence and Chapter 33 of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety." (Emphasis supplied) 7. Now, analysing the material based on which the applicant is being held in judicial custody, purely on a prima-facie basis, the following picture emerges. 8. In the complaint/statement made by the complainant on 03.03.2020 he said this: In supplementary statement dated 10.04.2020, m....
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....failed to reach the police by telephone, if Ct. Vikas was already present there. 11. The State further says that in CCTV footage dated 24.02.2020 obtained from cameras installed at Rajdhani Public School, Mahalaxmi Enclave, which footage was seized in the connected case FIR No. 111/2020 registered at PS: Dayalpur, the applicant is clearly seen actively participating in and instigating others during the riots. A quick check of the walking distance between the complainant's shop at property No. A-126A Mahalakshmi Enclave and Rajdhani Public School, Mahalakshmi Enclave on Google Maps, which identifies property No. A-126 (though not A-126A) and identifies the school, it is seen that the two places are at a distance of about 400 meters and a 5-minute walk but on two different sides of a turn in the road. It appears incredible therefore that camera/s installed in the school would be able to 'see' the complainant's shop. 12. It is on the basis of the aforesaid statements and CCTV footage that, according to the State, the applicant has been identified as being one of the main persons involved in the offences alleged inter-alia under sections 147/148/149 IPC. 13. Upon bei....
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....made to undergo his sentence after it has been awarded, after trial. 17. Besides this court also cannot but notice that the offences under section 147/148/149 IPC arise in the context of an 'unlawful assembly', which section 141 IPC defines as an assembly of 5 or more persons acting with unlawful purposes as defined in that provision; while in the present case only 2 persons appear to have been charged. Also, the offences under sections 147/148/149/427 IPC are in any case bailable offences; and only the offence under section 436 IPC is non-bailable; and there is no material to support that offence that can be said to be clinching or unquestionable, to say the least. 18. Upon a conspectus of the foregoing facts and circumstances, including in particular that: (a) firstly, the supplementary statement of the complainant does not appear to identify the applicant; (b) secondly, according to the State itself, no CCTV footage is available of the the incident itself; (c) thirdly, Rajdhani Public School, the CCTV footage from which is relied upon by the State, appears to be located at a place from where the complainant's shop seems unlikely to be visible; (d) fourthly,....