In a latest and significant development, Justice Vinod Yadav who is the Additional Sessions Judge of the Karkardooma Court in Delhi in State V/s Sameer Khan (Ankit Sharma murder case) in Bail Application No. 1282/2020 decided on October 22, 2020 to dismiss the bail plea of a man named Sameer Khan who is an alleged associate of Tahir Hussain who was arrested in connection with the murder of Intelligence Bureau (IB) official Ankit Sharma during the communal violence. This is certainly a big setback to Sameer Khan as his bail plea stands rejected. Earlier we saw how even Tahir Hussain’s bail pleas were similarly rejected!
To start with, it is first and foremost observed that, “I have heard arguments advanced at bar by both the sides and perused in the report filed in the matter as well as the chargesheet.”
On the one hand, it is pointed in para 2 that, “The learned counsel for the applicant has very vehemently argued that the applicant has been falsely implicated in the matter by the investigating agency. He is a young boy, aged about 25 years and is the sole bread earner of his family, which consists of his old aged parents. It is further argued that there has been an “unexplained delay” in registration of FIR in the matter in as much as information about death of IB Officer Shri Ankit Sharma was received at police station Dayalpur at about 18:06 hours on 25.02.2020; whereas the FIR was registered at around 23:54 hours on 26.02.2020 and this time gap period was used by the investigating agency to fill in the lacunas and stage manage the circumstances of the incident. The applicant has not been specifically named in the FIR. No recovery of any fire-arm/weapon has been effected from the applicant. No site plan of the alleged presence of applicant at the scene of crime has been filed on record. It is next argued that none of the witnesses in their evidence has stated about the applicant being involved in the murder of IB Officer Shri Ankit Sharma, although the incident has not been denied. It is emphasized that PW Gyanender Kumar Kochar and Vikalp Kochar have given very minute details about the murder of Shri Ankit Sharma, but they have not named the applicant therein. Even PW Shamshad Pradhan did not say a word about the applicant being involved in the murder of Shri Ankit Sharma. The applicant has not been named by witness Pradeep Verma in his statement recorded U/s 164 Cr.P.C. There is no direct evidence in the matter against the applicant. For want of “Test Identification Parade” (TIP) of the applicant through PW Akash, Shri Gyanender Kumar Kochar and Vikalp Kochar, the applicant cannot be implanted in this case. PW Akash is a “planted witness”, as he did not disclose about the incident to the police till 11.03.2020. The applicant has been arrested in the matter on the basis of disclosure statement dated 11.03.2020, made by co-accused Salman @ Haseen @ Mullaji. In the end, it is argued that the investigation in the matter is complete; chargesheet has already been filed; the applicant is no more required for custodial interrogation; and no useful purpose would be served by keeping him behind bars in the matter. It is also claimed that the applicant has clean past antecedents.”
On the other hand, it is then pointed out in para 3 that, “Per contra, the learned Special PP for the State has very vehemently argued that the present case relates to the murder of Shri Ankit Sharma, a young officer of Intelligence Bureau (I.B). On 26.02.2020, complainant Shri Ravinder Kumar, S/o Shri Man Singh, R/o E-140-A, Gali No. 6, Khajuri Khass, Delhi came to PS Dayalpur and stated that on 25.02.2020, his son Ankit Sharma, who was posted in Intelligence Bureau had come from his office and had gone out of the house to bring some household goods at about 5:00 PM. When he did not return after a long time, they started searching for him at nearby places, hospitals etc., but they could not find him. After waiting overnight, he lodged a missing report (GD No. 009-A dated 26-02-2020 at 11:41 Hrs) of his son Ankit Sharma at PS Dayalpur. Then he came to know from the local boys that a boy had been thrown into the “khajuri Khas Nala” from the Masjid of Chand Bagh pulia after he was killed. Body of Ankit Sharma was recovered from Khajuri Khas nala near Chand Bagh pulia. Clothes of Ankit Sharma were missing. There was only underwear on his body. The deceased Ankit Sharma had sustained sharp injuries on his head, face, chest, back and his waist. In the FIR, complainant Ravinder Kumar further stated that he had a strong suspicion that his son Ankit Sharma had been killed by main accused Tahir Hussain and his goons, who had gathered in his office and after killing his son, his body was thrown into the nala from the masjid.”
While talking about the investigation of the case, it is then spelt out in para 4 that, “After registration of FIR, investigation of the case was taken up by local police. During the course of investigation, postmortem of the body of deceased was got conducted at GTB Nagar Hospital on 27.02.2020 by a Board of Doctors. The postmortem report of deceased Ankit Sharma revealed 51 injuries caused by sharp edged weapons and blunt force. Thereafter, the investigation of the case was transferred to SIT of Crime Branch by the order of senior officers of Delhi Police on 28.02.2020.”
While continuing in the same vein, it is then stated in para 5 that, “Further, during the course of investigation, on inspection of the building of main accused Tahir Hussain, i.e. E-7, Khajuri Khas, main Karawal Nagar road, Delhi and the adjoining area, a lot of debris, stones, bricks, broken bottles, some glass bottles with liquid, bullets and burnt articles were found lying scattered on the main Karawal Nagar road. The building of main accused Tahir Hussain had been used by rioters/miscreants/other persons (including the applicant) for brick pelting, stone pelting, pelting of petrol bombs and acid bombs. A lot of stones, bricks, glass bottles containing petrol with neck staffed with clothes and other material including catapults were found lying on the third floor and on roof top of the main accused Tahir Hussain’s house.”
Needless to say, after giving thoughtful consideration to the arguments advanced at bar as pointed in para 14, it would be worthwhile to now mention that it is then stated in para 16 that, “From the evidence of a number of witnesses recorded in the matter, it is prima facie apparent that the “riotous mob” armed with “lethal weapons” had engaged in vandalism, looting and torching of public and private properties and their main objective was to cause maximum damage to the lives and properties of persons belonging to other community. Therefore, at this stage it cannot be said with certainty that the applicant did not have a common object with the other persons of unlawful assembly. The “common object” of this kind of riotous mob can be easily inferred therefrom. This Court is conscious that at this stage the trial is not being dealt with. We are at pre-cognizance stage and this Court has limitations in making in-depth analysis of the statements of witnesses, which are yet to be tested on the anvil of trial. Whether he can be convicted in the matter with the aid of Section 149 IPC is a preposterous conclusion at this stage, as the evidence is yet to be let in the matter. However, from the aforesaid behavior of “riotous mob”, the “common object” can be inferred at this stage.”
To state the obvious, it is then pointed out in para 17 that, “It is apparent on record from the statements of several witnesses that the applicant and other similarly placed persons had been instigated on communal lines by main accused Tahir Hussain, as a consequence whereof they were lying charged to attack all and sundry from the other community.”
What’s more, it is then observed in para 18 that, “I find substance in the arguments of learned Special PP that there is enough material on record at this stage which clearly identifies the applicant to be part of “riotous mob” which had indulged in arsoning, looting and vandalizing public and private property; chanting communal slogans and attacking the persons of other community. It is part of record that several persons were injured by suffering gunshot injuries, namely Ajay Goswami, Ajay Jha and Prince Bansal; whereas, IB Officer Ankit Sharma lost his life.”
Be it noted, it is then stated in para 19 that, “PW Akash has categorically identified the applicant to be part of the riotous mob that had brutally murdered IB Officer Ankit Sharma (supplementary statement of this witness recorded U/s 161 Cr.P.C by the IO on 09.04.2020; page 603 of the chargesheet).”
For the sake of clarity, it is then specified in para 20 that, “In my considered opinion, we are at “pre-cognizance/pre-committal stage” in the matter and at this stage, the Court considering the bail matter has to consider the material collected by the investigating agency at its face value and at this stage, “mini trial” cannot take place. Even the issue of TIP, whether it was required in the matter or not shall be considered at the stage of trial.”
It would be worthwhile to mention here that it is then stated in para 22 that, “The bail application of principal accused namely Tahir Hussain has already been dismissed by this Court vide detailed order dated 13.07.2020; whereas bail applications of other co-accused persons namely Shoaib Alam, Firoz, Mohd. Javed and Gilfam have also been dismissed by this Court vide detailed orders dated 04.08.2020, 28.08.2020 and 08.09.2020 respectively and the role attributed to the applicant in the matter being on the same/identical footing as that of aforesaid four co-accused persons, the present bail application also deserves dismissal.”
It is a no-brainer that it is then observed in para 23 that, “Considering the facts and circumstances of the case in totality, I do not find it to be a fit case for grant of bail. The bail application accordingly stands dismissed.”
Before parting, it is one again sought to be clarified in para 24 that, “It is hereby clarified that anything stated hereinabove shall not be construed as expressing any opinion on the final merits of the case, as the case is at “pre-cognizance/pre-committal stage”.”
In essence, it is quite ostensible that even though the bail plea of Sameer Khan has been dismissed by a Delhi Court in Karkardooma just like that of Tahir Hussain who is the prime accused along with others but the case is yet to be decided finally on merit as is clarified also in para 20 and para 24. It would be premature to draw any hasty conclusions on it. But yes, it must be certainly conceded that it is a big jolt to Sameer Khan just like in the case of Tahir Hussain. They can however, certainly stage a strong comeback but for that to happen, it all hinges on how their lawyers argue their case in the courts in the days to come! We certainly have to keep our fingers crossed till then!