On 16 March, the Delhi High Court granted bail to four people – Arshad Qayyum, Gulfam, Irshad Ahmad, and Liyakat Ali – in the FIR pertaining to the Delhi riots. The four petitioners are accused in FIR No. 116/2020 for offences under sections 109, 114, 147, 148, 149, 153A, 323, 392, 395, 427, 436, 454, 505, 120B, 34 of the Indian Penal Code.
While granting relief to the four accused, a single-judge bench of Justice Suresh Kait relied upon the grounds that seem to appear in multiple bail orders in the Delhi riots cases – no incriminating/CCTV evidence linking the accused to the incident, and unusual police inaction.
The prosecution’s case was based on primarily three pieces of evidence:
The counsel appearing for the accused pointed out that there has been an inordinate delay of three days in registering of the FIR. They further argued that the eyewitness who registered the complaint did not mention the names of any of the accused in the FIR.
It was further argued by the petitioners seeking bail that there’s no video evidence that links them to the scene of the incident, nor has the police made any recovery from them.
The court in its order has categorically pointed out the present FIR doesn’t specifically name any of the four accused. It also noted that it’s a matter of record that there has been a delay of three days in registering the FIR. While taking into consideration the delay caused in recording the statements of the three police constables who also claim to be eyewitnesses, the court went on to note:
On the issue of call data records, one of the key evidence of the police, the court said that “it is not disputed that the call detail record of prime accused Tahir Hussain does not match with those of petitioners.”
This clearly indicates that the accused persons had to stay in prison for a year on evidence that doesn’t even prove their presence at the scene of the incident. The court also takes note of this fact while highlighting that the petitioners cannot be made to languish behind bars for a longer time and the veracity of allegations levelled against them can be tested during trial.
The lack of incriminating evidence and suspicious police investigation have made appearance multiple times in orders written by the Delhi High Court granting bail to the accused.
In Danish’s case, the court took note of the fact that none of the public witnesses named him. Moreover, the police constables did not name Danish in their original statements, and his name only appeared in the supplementary statements filed by the same constables 12 days later.
The court had also cast doubts in the manner in which the police had taken Danish’s disclosure statement. “How can a man who’s only 10th pass write such a disclosure statement’, the court had pointed out. Apart from this, the court also took note of the usual loopholes in the CCTV and CDR evidence – saying that neither of them connects the accused to the scene of the incident.
Bilal Anwar Khan, a lawyer who appeared for Danish, Faizan, and many others accused of rioting, told The Quint that the police was successfully able to challenge bail applications before trial courts on the basis of the same dubious CCTV and CDR evidence. Khan says that these videos and records were not even verified through a forensic science lab.
The bail given to the men accused of the Delhi riots has come at a major cost. The cost gets aggravated when it is revealed that the only evidence that was keeping them in jail didn’t even connect them to the crime.
The fact that faulty investigation and inadequate evidence, as noted in these judicial orders, led to prolonged incarceration of the accused persons, is nothing short of a ‘miscarriage of justice’. It is a clear violation of the rule which says that bail is the rule and the jail is an exception. While the liberty for some might be secured, the larger issues of institutional flaws that lead to such miscarriages of justice in the first place remain woefully unaddressed.
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