2023/DHC/000059

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 20th December, 2022

Pronounced on: 05th January, 2023

+ BAIL APPLN. 2671/2022

RAVI @ ANIL CHAUDHARY ..... Petitioner
Through: Sh. Sidharth Agarwal, Sr.
Advocate alongwith Sh. Madhav
Khurana, Sh. Satyam Thareja, Sh.
Nitin Kumar Sharma, Ms.
Vasundhara Nagrath, Sh. Samarth
Luthra and Ms. Arshiya, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Sh. Ritesh Kumar Bahri, APP for
State alongwith Insp. Ramesh
Prasad Singh, SHO, PS Laxmi
Nagar alongwith SI Inder Veer
Singh.
Sh. Ankit Kumar Vats, Adv. for
witness Inam.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL

JUDGMENT
ANISH DAYAL, J.

1. By this application the petitioner seeks regular bail in FIR

No.226/22 registered at PS Laxmi Nagar under Sections
120B/302/149/34 IPC and Sections 25/27 of the Arms Act. The charge-
sheet has been filed and charges are yet to be framed. The petitioner has
been in custody since 10th February, 2022 and previous two applications
for bail before the Sessions Court have been dismissed.

2. The background facts in the matter, as per the case of the

prosecution, are that on receiving a PCR call vide a DD No.01A on 3rd
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February, 2022 police from PS Laxmi Nagar reached the place of

occurrence i.e. Girotra Store near Balaji Rasoyi Restaurant where they
came to know that the victim, Mayur Chouhan, aged 23 years had been
shifted to Max Hospital, Patparganj, Delhi. On reaching the hospital,
MLC was received where the doctor had declared the victim as brought
dead. Subsequently the FIR was registered on the statement of
eyewitness Harsh Kumar. The eyewitness stated that on 2nd February,
2022 he was present with the deceased at his office when the deceased
received a call from accused Vipin Nagar who asked him to meet at
Balaji Rasoyi Restaurant. When they reached the restaurant, accused
Vipin Nagar along with other associates reached there and the accused
asked his companions to kill the deceased, who tried to escape but they
followed him and shot him and then ran away from the spot. The
petitioner was arrested pursuant to disclosures by various witnesses
particularly of Md. Inam whose statement was also recorded under
Section 164 Cr.P.C. Apparently as per the disclosure of the petitioner, a
conspiracy was hatched between him, Nitish Kumar Bhardwaj and Vipin
Nagar for attack and murder of the rivals Sunder Bhati and Himanshu
Sharma living in Shakarpur area and Mayur Chouhan living in Laxmi
Nagar area. The petitioner had assured Nitish Kumar and Vipin Nagar
that he would help them financially and provide shelter to them till the
matter cools down. As per plan, Vipin Nagar and Nitish Kumar along
with associates viz. Chirag, Sidharth, Hardik, Kartik, Ashish, Jasvinder,
Rahul Gupta, Ashish, Mudit Chouhan, Sumit Chandila, Harsha Gujjar,
Navin Khatana and others gathered at the flat of Vipin Nagar and
thereafter reached Shakarpur area and fired at the flat office of Sunder
Bhati and Himanshu Sharma. Hardik told them that they had fired
mistakenly at the wrong house, so they fled from there and assembled at
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Preet Vihar petrol pump and called Mayur Chouhan to meet Vipin Nagar
at Balaji Rasoyi Restaurant where they murdered Mayur Chouhan. As
per the State, the petitioner gave Rs. 20,000/- in cash to co-accused
Nitish Kumar and Vipin Nagar after the murder and also received
mobile phones of Vipin Nagar, Jasvinder, Hardik, Kartik and Ashish
which was supplied to him by Vipin Nagar after the incident and all
these five phones were allegedly recovered at his instance from Yamuna
Khadar, Vikash Marg.

3. The Ld. Senior Counsel appearing for the petitioner argued that
the mere fact that the offence accused of involves Section 302 IPC itself
is not a disqualification for bail since Section 439 Cr.P.C. does not
contain an additional threshold which is provided with respect to such
offences in Section 437 Cr.P.C. The Ld. Senior Counsel thereafter
stressed on the fact that the petitioner was neither reported to be present
on the spot of incidence by the eyewitness, nor in the dying declaration
by the deceased, nor was he seen in the CCTV footage. To substantiate
this contention, the Ld. Senior Counsel adverted to the following:

(i) The FIR which was based on the complaint of Harsh stated that
when he reached Balaji Rasoyi Restaurant along with the deceased,
some motorcycles and a Swift Car had come from which Vipin Nagar
with 7-8 associates alighted and surrounded the deceased. When the
deceased tried to escape Vipin Nagar shot him with his gun and the
deceased received bullets on his back. Harsh then narrated the incident
to his friend Aman over phone and sometime later Md. Inam (friend of
the deceased) accompanied by Aman and the father of the deceased
(Sanjeev Chouhan) reached the spot. Later, another friend of the
deceased, Raman also reached the spot on his scooter.
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(ii) The FIR further records the statement of Raman who confirms
that he had arrived at the spot having got to know that his friend Mayur
Chouhan had been injured. Raman mentions that on asking Mayur
Chouhan he had disclosed that Vipin Nagar, Sumit Chandila, Hardik,
Kartik, Chirag Sirohi, Nitish Bhardwaj, Rahul Gupta, Jasvinder Singh,
Sidharth and Ashu Pandit had fired upon him and rushed away. This
statement did not mention the petitioner.

(iii) Raman further stated that when he and Md. Inam were taking the
injured Mayur Chouhan on the scooter to the hospital, he had disclosed
that Harsha Gujjar, Mudit Chouhan @ Ashu, Omesh Nagar, Khacheru,
Sidharth, Deepak Pahari, Chirag Sirohi, Rahul Tanwar and Naveen
Khatana were also involved in the incident. This part of the statement
also does not mention the petitioner.

(iv) In his statement recorded under Section 161 Cr.P.C. on 3 rd

Februray, 2022, Harsh does not make any improvement on what was
stated in the FIR and the petitioner was still not named.

(v) As per the statement of Aman recorded under Section 161 Cr.P.C.
on 3rd February, 2022, Aman identifies the faces in the CCTV footage
and names Vipin Nagar, Hardik, Kartik, Nitish Bhardwaj, Chirag Sirohi,
Rahul Gupta, Sumit Chandila, Harsha Gujjar, Ankit Lohia, Naveen
Khatana, Jasvinder Singh and Mudit @ Ashu and Ashish, but does not
name the petitioner.

(vi) The statement of the father of the deceased recorded under Section
161 Cr.P.C., states that he arrived at the spot and saw his son in an
injured condition and his son told him that Vipin Nagar and various

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associates (whom he specifically named) had come to shoot him,

however, there is no mention of the petitioner in this as well.

(vii) Raman gave a supplementary statement under Section 161 Cr.P.C.

on 4th February, 2022 which also does not mention the petitioner.

(viii) The statement of Md. Inam recorded under Section 161 Cr.P.C. on
3rd February, 2022 as well as another statement recorded on 4 th February,
2022 also does not mention the name of the petitioner despite having
stated that when they took the injured to the hospital he had mentioned
various names of the associates of Vipin Nagar who had accosted and
shot at him.

4. The Ld. Senior Counsel for the petitioner pointed out that the
petitioner’s name was neither mentioned by the eyewitness nor his
friends, nor by his father who came to the spot while the deceased was in
an injured condition and disclosing the names of the assailants, nor when
Raman and Md. Inam took him to the hospital when yet again the
deceased mentioned the names of the assailants. Rather, the mention of
the petitioner comes in a statement recorded under Section 164 Cr.P.C.
of Md. Inam on 9th February, 2022 when while reiterating what the
injured Mayur had told them regarding Vipin Nagar and associates, he
added that the injured Mayur had also mentioned that he had heard the
assailants stating that they were going to the office of the petitioner
thereafter. Notwithstanding that this was a belated introduction in an
improved statement of Md. Inam which itself was shrouded in doubt, the
ultimate essence of the statement was that the deceased had stated that
he heard the assailants saying that they would go to the petitioner’s
office. As per the Ld. Senior Counsel for the petitioner, it was evident
that the petitioner was not one of the assailants who was present at the
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spot nor in the proximity of that area but as per the hearsay of Md. Inam
the assailants had stated that they were planning to go to the office of the
petitioner. The Ld. Senior Counsel for the petitioner also contended that
even this allegation that the assailants had gone to the office of the
petitioner after shooting at Mayur Chouhan is contradicted by the
charge-sheet itself which shows that the assailants had gone to NOIDA
and not to office of the petitioner.

5. The Ld. Senior Counsel for the petitioner drew attention of the
Court to the other pieces of evidence like the mobile/CDR records which
would at best show that the petitioner has spoken to Vipin Nagar and
Nitish Bhardwaj twice at the maximum and the last call which was
exchanged with Nitish Bhardwaj was 2 days prior to the date of incident
and with Vipin Nagar 13 days prior to the incident.

6. As per the disclosure statement of the petitioner, on which the

prosecution was relying upon, the five accused had given mobile phones
to the petitioner for safekeeping which were recovered from the bushes
behind the bus stop allegedly at the instance of the petitioner. The Ld.
Senior Counsel, therefore, stressed that this fact of recovery was at best a
post event fact while the prosecution case is of conspiracy as well which
would necessarily involve only pre event facts. At best, the counsel for
the petitioner contended that keeping the mobile phones for safekeeping
or hiding them would involve an offence punishable under Section 201
IPC which is a bailable offence on its own standing.

7. It was further contended in response to the other involvements of

the petitioner disclosed in the status report (7 in number) that the
petitioner had been acquitted in one, discharged in one, matter was

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compounded in three of them, and had been granted bail in FIR

No.214/2022.

8. Countering the contentions of the petitioner, the Ld. APP

submitted that even though the petitioner had not been named initially,
he had clearly conspired in the killing of the deceased and these
conspiracies are always hatched in secrecy, however, inferred from
circumstances and the evidence available. Reliance was placed on the
statement of one Sunder Bhati recorded under Section 161 Cr.P.C. who
was a rival of Vipin Nagar as well as the petitioner. In his statement, he
states that in November, 2021 he had had an altercation with Vipin
Nagar and thereafter started receiving threats from him. He further
stated that Vipin Nagar had a rivalry and litigation with his friend Mayur
Chouhan. He further stated that he had seen Vipin Nagar and his
associates on 2nd February, 2022 around 11.00 p.m. (though does not
name the petitioner) and on seeing them he ran away and later came to
know that these people had fired at Mayur Chouhan in the street behind.
It was further contended by the Ld. APP that the petitioner is an
influential person and may threaten the complainant as well as other
witnesses and tamper with the evidence. It is also stated that some co-
accused are still at large and, therefore, the petitioner would attempt to
harbour them in case he was released. Countering the issue of pre-event
and post event facts, the Ld. APP contended that as per Section 8 of the
Indian Evidence Act subsequent conduct was also relevant.

9. In his rejoinder, the Ld. Senior Counsel for the petitioner stated
that as per the facts stated in the FIR and from a perusal of the
statements recorded no offence under Section 302 or 34 IPC was made
out since the petitioner was admittedly not there at the spot when the
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firing took place nor was he in the vicinity. At best an offence under
Sections 212 or 201 could be pursued against the petitioner (assuming
without conceding) which are both bailable. As regards offence under
Section 120B facts as discovered were only post event and nothing had
been discovered by the investigation to substantiate that there was a pre-
event conspiracy. It was further contended that the statement of Sunder
Bhati which the State was relying upon was totally irrelevant because he
was not only a bad character of that area but also had stated his rivalry
against Vipin Nagar and associates and, therefore, was unreliable as a
witness on whom the prosecution could rely to substantiate the case. It
was further contended that antecedents, if any, would not matter in
offences which were effectively bailable. As regards the absconsion of
the other co-accused, the Ld. Senior Counsel for the petitioner contended
that criminal jurisprudence is based on individual cases and not
collective assessments, and therefore the merits of the petitioner’s bail
petition should be assessed on his individual facts and circumstances.

10. Having carefully perused the record and assessed the contentions
by the parties, it is evident that none of the witnesses who would be
presented by the prosecution including the eyewitness Harsh, Aman and
Md. Inam, friends of the deceased who had reached the spot or the father
of the deceased who had also reached the spot, had mentioned the name
of the petitioner as somebody who was at the spot. Aside from the
eyewitness Harsh, the statements of Aman, Md. Inam and the father all
advert to what the injured Mayur Chouhan had stated to them while
either on the spot or when he was being taken to the hospital. The only
limited reference which points to the petitioner is the statement of Md.
Inam which is a subsequent statement recorded 6 days after his initial
statement where he adds to what had been apparently told to him by the
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injured Mayur Chouhan. This addition was that as Md. Inam had heard
Mayur Chouhan stating while he was in an injured condition and being
taken to the hospital that Mayur Chouhan had heard the assailants stating
that they were going to go to the petitioner’s office thereafter. Prima
facie this would indicate that the petitioner was definitely not present at
the spot or in vicinity and that the assailants (or some of them) had an
intention of going to the petitioner’s office thereafter. Whether this plan
of going to the petitioner’s office thereafter fructified or was part of a
pre hatched conspiracy or plan would be finally for the prosecution to
prove during trial. However, at this stage there was nothing on record to
suggest that there did exist this conspiracy and there was a plan in which
the petitioner had conspired to kill the deceased. The only other aspect
which the prosecution seems to be relying upon is the recovery of the
five phones from the bush behind the bus stop at the instance of the
petitioner which belong to the assailants. While the admissibility of this
recovery would have to be proved during trial, mere possession of the
phones of the assailants would at best invite an offence punishable under
Section 201 IPC (causing evidence of the commission of offence to
disappear with an intent of screening the offender). This offence under
Section 201 IPC is bailable in all its various formulations as provided in
the Section. The other possibility could be under Section 212 IPC which
was to harbour the offender which was also bailable as per the provision.
Considering the fact that the petitioner, as per the statement of witnesses,
was not present on the spot of incident nor in the proximity but was
merely implicated on the basis of hearsay by a witness that the assailants
could have gone to his office post the event, and also that the recovery
from the petitioner would still have to be proved in trial, and even if so
proved would implicate him for offences which are bailable in nature,
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the considered opinion of the Court is that since the trial would take
substantial amount of time, there would be no purpose served keeping
the petitioner in custody as an undertrial. The investigation stands
completed and the charge-sheet has already been filed. The petitioner is
not the main accused for firing at the deceased nor was he present at the
spot and hence the offence under Section 302 IPC can only rope the
petitioner within its ambit once either the element of conspiracy under
Section 120B IPC or common intention under Section 34 IPC is proved
against him. The previous involvements of the petitioner have either
ended up in discharge or in acquittal or compounding or bail and,
therefore, it cannot be said that the petitioner has been held guilty for
any previous involvement. The mere suspicion or apprehension of the
prosecution that the petitioner may end up tampering with evidence or
harbouring the co-accused is not sufficient or substantiated at this stage
to justify the continued incarceration of the petitioner. The Hon’ble
Supreme Court has repeatedly held that it is the duty of Constitutional
Courts to ensure there is no arbitrary deprivation of personal liberty and
that bail is the rule and jail is an exception. Reference may be made to
the decisions of the Hon’ble Supreme Court in inter alia Prasanta
Kumar Sarkar v. Ashis Chaterjee, (2010) 14 SCC 496 and Mahipal v.
Rajesh Kumar, (2020) 2 SCC 118 and Prabhakar Tewari v. State of
Uttar Pradesh, (2020) 11 SCC 648. The petitioner’s presence at the
scene of crime being inconclusive at this juncture can only be confirmed
during trial and cannot justify prolonged incarceration of the petitioner at
this point of time.

11. In light of the above and that the trial in the matter is likely to take
some time and it would not be prudent to keep the petitioner behind bars
for an indefinite period, this Court finds it to be a fit case for grant of
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bail to the petitioner. Consequently, the petitioner is directed to be

released on bail on his furnishing a personal bond in the sum of
Rs.1,00,000/- with two sureties of the like amount subject to the
satisfaction of the Ld. Trial Court, further subject to the following
conditions:

i. Petitioner will not leave the country without prior permission of

the Court.
ii. Petitioner has given his address in the memo of parties. The
petitioner shall intimate the Court by way of an affidavit and to
the IO regarding any change in residential address.
iii. Petitioner shall appear before the court as and when the matter is
taken up for hearing.
iv. Petitioner shall join investigation as and when called by the IO
concerned.
v. Petitioner shall provide all his mobile numbers to the IO
concerned which shall be kept in working condition at all times
and shall not switch off or change the mobile number without
prior intimation to the IO concerned. The mobile location be kept
on at all times.
vi. Petitioner shall report to the IO at PS Laxmi Nagar once every
month in the first week of the month unless leave of absence is
obtained from the Ld. Trial Court.
vii. Petitioner shall not indulge in any criminal activity and shall not
communicate with or come in contact with any of the prosecution
witnesses, the victim or any member of the victim’s family or
tamper with the evidence of the case.

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Needless to state, but any observation touching the merits of the case is
purely for the purposes of deciding the question of grant of bail and shall
not be construed as an expression on merits of the matter.
12. Copy of the order be sent to the Jail Superintendent for
information and necessary compliance.

13. Accordingly, the petition is disposed of. Pending applications (if

any) are disposed of as infructuous.

14. Order be uploaded on the website of this Court.

(ANISH DAYAL)
JUDGE

JANUARY 05, 2023/mk

Signature Not Verified

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