Delhi High Court - Orders
Anees Ahmed vs The State (Gnct Of Delhi) on 1 September, 2023
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2422/2023
ANEES AHMED ..... Petitioner
Through: Ms. Tanya Nayyar and Mr. Manish
Kumar Singh, Advocates
versus
THE STATE (GNCT OF DELHI) ..... Respondent
Through: Mr. Ajay Vikram Singh, APP for
State with SI Nitin, PS New
Usmanpur
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
ORDER
% 01.09.2023 [The proceeding has been conducted through Hybrid mode] CRL.M.A. 19251-52/2023
1. Exemption allowed subject to just exceptions.
2. The applications stand disposed of.
BAIL APPLN. 2422/20233. This is a bail application under Section 439 of the Code of Criminal Procedure, 1973 filed on behalf of the applicant seeking regular bail in FIR No.08/2012 dated 06.01.2012 under Section 302/363/364A/120B/201/34 of Indian Penal Code, 1860 registered at Police Station New Usman Pur, Delhi.
4. Ms. Tanya Nayyar, learned counsel appearing for the applicant BAIL APPLN. 2422/2023 1 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 15:42:13 submits at the outset that the applicant has been incarcerated in judicial custody since 08.01.2012 and barring roughly 2 years period on release under the High Powered Committee ('HPC') guidelines, the remaining period of 08 years, 01 month and 26 days have been spent in incarceration.
5. Ms. Tanya Nayyar, learned counsel appearing for the applicant submits that though the offences may appear to be heinous and serious, there is nothing in the prosecution's case to link the applicant to the offences as alleged.
6. Ms. Tanya Nayyar, learned counsel also submits that barring the fact that the IMEI number of the mobile phone of the applicant being confirmed, the sim card which was alleged to have been used in the mobile phone of the applicant, belonged to the co-accused. Ms. Tanya Nayyar, learned counsel submits that a doubt arises in regard to the complicity of the applicant, since it is the same co-accused person whose sim card was found in the mobile phone of the applicant, who had implicated the applicant in the offences.
7. Ms. Tanya Nayyar, learned counsel appearing for the applicant brings attention of this Court to page 88 of the present petition which is the examination-in-chief of the complainant PW10 to submit that, apart from the fact that some person has made a ransom call to the complainant that the deceased victim was kidnapped, there is nothing to link that it was the applicant alone who had made that call.
8. Ms. Tanya Nayyar, learned counsel further submits that there has been no voice sampling done to match the voice of the applicant with the alleged caller who made that call on 05.01.2012 at 10:41 pm. BAIL APPLN. 2422/2023 2 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 15:42:13
9. Learned counsel appearing for the applicant submits that the FIR which was registered on 06.01.2012, surprisingly, does not mention the fact about any ransom call having been received by the complainant-PW-10. Learned counsel further submits that in case there was any veracity or truthfulness in the prosecution story, there was no question as to why the complainant would not mention such an important call to the police on 06.01.2012.
10. In particular, Ms. Tanya Nayyar, learned counsel appearing for the applicant submits that since the entire machinery of the prosecution was moved on the basis that the child was kidnapped, there is no plausible reason why the complainant would not refer to the phone call. It is also surprising to note that there was no call made for demand of ransom barring the sole call allegedly made at 10:41 pm. According to her, the version of the prosecution is unbelievable.
11. Ms. Tanya Nayyar, learned counsel appearing for the applicant vehemently submits that the CCTV footage which has been placed on record by the prosecution shows only the other four co-accused persons and the applicant is conspicuous by his absence in the CCTV footage. On that basis, Ms. Tanya Nayyar, learned counsel appearing for the applicant submits that even the electronic evidence in respect of such coverage does not incriminate the applicant herein.
12. Ms. Tanya Nayyar, learned counsel appearing for the applicant also submits that the DNA analysis of the strand of hair found on the body of the victim, shows it to be belonging to the another co-accused person and not the applicant. She further submits that keeping that in regard, the complicity of the applicant cannot be ascertained with BAIL APPLN. 2422/2023 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 15:42:13 conviction.
13. Ms. Tanya Nayyar, learned counsel appearing for the applicant submits that from the entire gamut of the facts as projected by the prosecution, no case is made out against the applicant and the applicant ought to be released on bail.
14. Per contra, Mr. Ajay Vikram Singh, learned APP submits the mobile phone which was used by the kidnappers to call the complainant belongs to the applicant and there is no dispute about that. Mr. Singh, learned APP also submits that the said mobile phone was also recovered from the applicant at his instance.
15. Learned APP submits that the analysis of the CDR records of the applicant's mobile phone and that of the PW10/complainant also coincide to have interacted with each other on the same night at 10:41 pm.
16. On that basis, learned APP submits that there is no doubt at all that the applicant was the one who had made that ransom call at 10:41 pm on 05.01.2012.
17. That apart, learned APP submits that it is a very serious case of heinous offence against the minor child who was finally strangulated by one of the co-accused person. Mr. Singh, learned APP submits that a specific active role has been ascribed to the applicant by the co- accused persons, in that, he is stated to have held the legs of the minor child while the child was being strangulated.
18. That apart, Mr. Singh also submits that the present case involves two offences, which attract the maximum punishment of sentence of death, and therefore the applicant may not be released on BAIL APPLN. 2422/2023 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 15:42:13 bail.
19. Learned APP also submits that out of 27 witnesses, 19 witnesses including the public witnesses has already been examined and it is a matter of short period when the remaining witnesses would be examined and therefore releasing the applicant for such a heinous crime at this stage of the trial may not be appropriate. He seeks dismissal of the present application.
20. Heard.
21. This is not disputed that the applicant has been incarcerated continuously since the period of incarcerated in judicial custody since 08.01.2012 barring the release on interim bail roughly for a period of two years under the HPC line. The applicant had thereafter surrendered to the jail authorities. Thereafter he has been continuously incarcerated till date. In all the applicant has already been in judicial custody for almost 08 years, 01 month and 26 days according to the nominal roll dated 26.08.2023. So far as the nominal roll is concerned, it does not disclose that any other FIR is pending against him. His Jail conduct and overall conduct in the jail is recorded as satisfactory. So far the issue of bail is concerned, this Court is only to see as to whether there is a prima facie view which could involve or implicate the applicant in the said offences.
22. It is not disputed by the prosecution that the applicant was working as an employee with PW-10 for about a year before the date of incident, and the call, even if assumed to have been made from the mobile of applicant, though not admitted, is taken at its fine value, it would not be out of place for an employee to call his employer.
BAIL APPLN. 2422/2023 5This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 15:42:13
23. Another issue which would also be relevant at this stage is as to why the voice sample of the applicant was not matched and confronted to the PW10/complainant at whose instance the FIR was registered and also needs consideration.
24. That apart there is no other independent or corroborative evidence, as of now and prime facie, to show that the applicant had any active role in the commission of the offences as projected by the prosecution.
25. Though, there is no doubt that 19 witnesses out of the 27 witnesses have already been examined. However, the fact still remains that even the said examination of 19 witnesses had taken almost a decade to complete. Viewing the nature of offences in the background of the fact that the applicant has an indelible right under Article 21 of the Constitution of India for a speedy trial as also the fact that trial has taken almost a decade to reach where it presently is, the applicant at the pre trial stage cannot be kept behind bars endlessly or till final order is pronounced by the trial court.
26. Keeping in view the aforesaid, the applicant is entitled to be and is released on bail on his furnishing a personal bond in the sum of Rs.50,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court. However, the aforesaid directions are passed, subject to the following conditions:-
a) He shall surrender his passport, if any, to the Court concerned and shall under no circumstances leave Delhi without prior permission of the Court concerned;
b) He shall cooperate in the trial and shall appear before the BAIL APPLN. 2422/2023 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 15:42:13 Court as and when required;
c) He shall provide his mobile number(s) to the Investigating Officer and keep it operational at all times;
d) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever;
e) He shall not visit the locality where the victim/complainant and his/her family reside;
f) He shall not indulge himself in any criminal activity of any nature whatsoever.
g) He shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer; and
h) In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/ Court concerned by way of an affidavit.
27. Nothing in this Order shall be construed as an expression of opinion on the merits of the pending matter.
28. With the aforesaid conditions, the bail application stands disposed of.
TUSHAR RAO GEDELA, J SEPTEMBER 1, 2023/ms BAIL APPLN. 2422/2023 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 15:42:13