New Delhi: Prison is primarily for punishing convicts and not for detaining undertrials in order to send any ‘message’ to the society, the Delhi High Court said on Monday while granting bail to an accused in the Delhi riots case.
A single judge bench of the high court presided over by Justice Anup J. Bhambani said, “Prison is primarily for punishing convicts; not for detaining undertrials in order to send any message to the society. The remit of the court is to dispense justice in accordance with law, not to send messages to the society.”
“It is this sentiment, whereby the state demands that undertrials be kept in prison inordinately without any purpose, which leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being punished even before trial and are therefore being treated unfairly by the system. If at the end of a protracted trial, the prosecution is unable to bring home guilt, the state cannot give back to the accused the years of valuable life lost in prison,” the court said.
The observations came against the state’s submissions claiming that granting bail at an early stage might send an “adverse message in the society”.
The court was hearing a bail application filed by Firoz Khan in connection with a case relating to the Delhi riots in an FIR registered in the Dayalpur police station in the North East district of the national capital. According to the FIR, on February 24, some rioters set the complainant’s shop on fire and looted lakhs of rupees.
However, the applicant claimed in his bail plea that neither was any material collected during the investigation that would identify the applicant as one of the perpetrators, nor did the complainant name him in the FIR.
During the course of hearing, senior advocate Rebecca John, appearing for the petitioner, contended that “no test identification parade of the applicant was conducted 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.”
“The applicant is a resident of Old Mustafabad which is nearly a 15-minute walk from the Mahalaxmi Enclave, where the complainant is said to have run his confectionary shop; 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 said.
John also argued that Mohd. Anwar, who is co-accused with her client in the said case, has already been granted bail by the trial court. She also pointed out that of the offences alleged, only one, namely the offence under Section 436 of the IPC, was a non-bailable offence.
Opposing the submissions made by the senior counsel for the petitioner, the prosecution argued that the petitioner has not only been identified by the complainant, but is also in the CCTV footage obtained from the Rajdhani Public School and that is sufficient basis to hold him in judicial custody.
After perusing the FIR and the complainant’s statement, the high court noted that the complainant had neither named or otherwise identified the accused and granted bail to Firoz Khan on furnishing of a personal bond of Rs 50,000 and two sureties of the like amount from his blood relatives and directed him not to leave the national capital without the court’s permission.
Concluding its order running into 14 pages, the high court said, “While ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail, however, here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked up only two, one of them being the applicant.”
“In this peculiar circumstance, this court was compelled to sift the evidence only prima-facie and limited to cursorily assessing how the police have identified the applicant from that large assembly of persons,” the bench ruled.
The court said it is conscious that ‘judicial custody’ is the custody of the court; and the court will be loathe to depriving a person his liberty, in the court’s name, on the mere ipse-dixit of the state, when it finds no substantial basis or reason for doing so.
“Let it be clear, however, that nothing in this order shall be construed as an expression on the merits of the evidence to be adduced in the matter,” Justice Bhambani concluded.
Communal violence had broken out in the parts of Delhi in February after clashes between pro and anti-Citizenship Amendment Act supporters spiralled out of control, leaving 53 dead.