Video Clipping Has Shaken Conscience Of The Court: Delhi High Court Refuses Bail To Shahrukh Pathan In Delhi Riots Case

Video Clipping Has Shaken Conscience Of The Court: Delhi High Court Refuses Bail To Shahrukh Pathan In Delhi Riots Case

We all know fully well how the Delhi riots in February 2020 had shaken our nation as a whole and sullied our nation’s reputation in the eyes of the world. It claimed more than 53 innocent lives and left many injured and many shops, vehicles and houses were set on fire following clashes between pro and anti-CAA protesters. If only our government led by PM Narendra Modi had heeded to what we see in most foreign countries that no one no matter how powerful he/she may be can ever be allowed to block road or  rail track under any circumstances these most dreaded riots would never have occurred at the first place! My best friend Sageer Khan also once very rightly said to me way back in 1993-94 in Sagar in MP that, “I am always ready to bear Allah’s full fury but under no circumstances will I ever block road for offering namaz. There was no space in mosque or anywhere else except on road! Offering namaz on road is a big crime for me which I will never commit under any circumstances! Not for a second will I ever do anything that disturbs others and forces them to wait for me to leave road so that they can leave for their own work! Centre and State governments should not ever allow blocking of roads and rail tracks ever as once allowed then it will become a very dangerous trend. But till now I thank Allah that we don’t see anything of this happening in India!”

But much water has flown under the bridge since then! We saw how roads in Shaheen Bagh were blocked for months and public resentment increased! Total inaction on the part of the State led to the Delhi riots for which the State certainly cannot just wash its hands off!

Even Supreme Court recently reiterated that no one can block roads under any pretext then why Centre and State Governments allow anyone to do so is most baffling and this is exactly what led to the worst killings as protesters who were blocking roads unstopped, unchecked and unhindered became emboldened to block more and more places which finally culminated in the infamous Delhi riots! How can the right to protest of few protesters hold the right of lakhs of people to travel smoothly from one place to another to ransom? Protest has to be peaceful and at designated places alone and it cannot be allowed to coerce Centre to submission on any given subject as we are witnessing most unfortunately right now!

Coming to the present case, the Delhi High Court has just recently on April 15, 2021 in a latest, landmark, laudable and learned judgment titled Shahrukh Pathan @ Khan vs The State of NCT of Delhi in Bail Appln. 664/2021 has refused to grant bail to Shahrukh Pathan who was seen in a viral video brazenly pointing a gun at unarmed Delhi Police personnel during the riots of February 2020. A Single Judge Bench of Justice Suresh Kumar Kait of Delhi High Court held that, “Keeping in mind the gravity of offence committed by the petitioner as also the facts of the present case, I am not inclined to grant bail to the petitioner.” We shall discuss more on it later as we progress ahead.

To start with, the ball is set rolling in para 1 of this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of Justice Suresh Kumar Kait of Delhi High Court wherein it is stated that, “By this petition, petitioner is seeking bail in FIR No. 51/2020, under Sections 147/148/149/186/216/307/353 IPC & Sections 25/27 Arms Act, registered at police station Jaffrabad, Delhi.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “On 26.02.2020, statement of Head Constable Deepak Dahiya, who was deputed to maintain law and order with other members of his team in the area between Jaffrabad Metro Station and Maujpur Chowk, where a clash between two groups took place on 24.02.2020, was recorded. In his statement, he had stated that one person, leading the agitated crowd and brandishing pistol in his hand, came running towards him and fired 3-4 rounds of shots towards other people. The said person did not hear to his warnings, and continued to walk to approach him and while he was at a distance of 9 to 10 feet, he aimed the pistol at his head and shot the pistol fire. Head Constable Deepak Dahiya further stated that he dodged his head and saved his life and tried to calm down the said person, but he pushed him with his left hand and he again fired at the public. On his complaint, the FIR in question was registered.”

Be it noted, the Bench then observes in para 3 that, “The incident was captured by a Journalist in his mobile phone and the person brandishing and firing from pistol was identified as Shahrukh i.e. the petitioner herein. Efforts were made to apprehend him and he was intercepted and detained on 03.03.2020. Pursuant to a sustained interrogation, petitioner voluntarily disclosed his involvement in the alleged incident and he was arrested in this case and is behind bars since then.”

On the one hand, the Bench then points out in para 4 that, “At the hearing, learned counsel for petitioner submitted that the alleged incident had taken place on 24.02.2020 and the FIR in question was registered on 26.02.2020 and so, there is 50 hours delay in registration of the FIR. Reliance was placed upon decision of this Court in Thulia Kali Vs. State of T.N. (1972) 3 SCC 393 to submit that delay in lodging the FIR is an afterthought and results in embellishment.”

Adding more to it, the Bench then states in para 5 that, “It was further submitted that merely because petitioner was apprehended from Shamli, Uttar Pradesh, he cannot be said to be an absconder until and unless declared by the court, especially when no notice was issued against him to appear before the authorities. Further submitted that petitioner has been made a scapegoat/ poster boy of the riots and complainant has become the symbol of bravery before the media persons, which is against fundamental rights of the petitioner.”

Still adding more, the Bench then reveals in para 6 that, “Learned counsel further submitted that on the basis of complaint of Head Constable Deepak Dahiya, Section 307 IPC has been invoked against the petitioner, whereas the petitioner had only shot in the side and not towards him and so he had no intention to kill him. During the course of hearing, learned counsel for petitioner placed reliance upon various interview clippings of complainant- Deepak Dahiya with media persons and broadcasting channels, in support of above submissions.”

Going ahead, the Bench then also points out in para 7 that, “Reliance was also placed upon decision of Hon’ble Supreme Court in State of Kerala Vs. Raneef (2011) 1 SCC 784 to submit that while deciding the bail application, the court has to bear in mind the delay in concluding the trial. It was also submitted that irrespective of how many criminal cases are pending against an accused, it cannot form the basis to refuse the bail.”

Not stopping here, the Bench then also adds in para 8 that, “Lastly, it was submitted that the learned trial court while refusing to grant bail to petitioner has not considered material factual aspects and has mechanically held that the allegations levelled against him are grave. He submitted that petitioner cannot be made to languish behind the jail for an indefinite long period and therefore, this petition deserves to be allowed.”

On the contrary, the Bench then states in para 9 that, “On the other hand, learned Special Public Prosecutor has opposed the present petition while submitting that the FIR in question has been registered at the instance of a responsible police officer, who was on duty on the fateful day of riots and there are specific allegations of petitioner heading a pistol towards Head Constable Deepak Dahiya with an intention to kill him. Learned Special Public Prosecutor has played before this Court a video clip as well as a few photographs showing petitioner heading the group of mobs, holding his pistol in hand and walking towards the complainant and also firing the pistol shots.”

Furthermore, the Bench then envisages in para 10 that, “Learned Special Public Prosecutor further submitted that petitioner had absconded since the day of alleged incident and he could be intercepted only on 03.03.2020 and at his instance, the illegal weapon used by him on 24.02.2020 with 02 live cartridges and the shirt worn by him at the time of incident, were recovered from his house. Further submitted that after dispersal of the rioters, three empty cartridges bearing the mark KF 7.65 were recovered from the spot by SI Naresh Kumar, Jaffrabad Police Station and during interrogation, petitioner has admitted of having purchased the illegal weapon from Meerut for a sum of Rs.35,000/- and as per FSL report, the cartridges seized from the spot have been fired from the weapon of offence.”

Going forward, the Bench then adds in para 11 that, “It was also submitted that the call detail record and video footage analysis clearly show petitioner’s involvement in the alleged incident of riots. It was submitted that charge sheet in this case has already been filed and trial is in progress. It is, therefore, urged that no leniency is required to be shown towards the petitioner and this petition deserves to be dismissed.”

Needless to say, the Bench then states in para 12 that, “The arguments heard by both the sides were heard at length and material placed on record is perused.”

It is worth noting that it is then observed in para 13 that, “Before coming to the facts and rendering an opinion in the present case, this Court takes a serious view to the contents of paragraphs No. 14 to 16 of this petition, which are not worth disclosing. Highly derogatory and serious allegations have been made against the Government of India, Ministers and Judge of this Court, which is deprecated and the Bar is suggested to not make such claims until and unless supported with factual and material evidence in a particular case.”

To be sure, the Bench then states in para 14 that, “Pertinently, the allegations levelled against the petitioner in the present case are that in the unfortunate incident of riots which occurred on 24.02.2020 at the road between Jaffrabad Metro Station and Maujpur Chowk amongst people of different communities, petitioner was a party to the huge crowd which had unauthorizedly gathered and pelted stones, petrol bombs and fired gun/pistol shots.”

Most significantly, what ultimately turned the dice against the petitioner is then elaborated upon in para 15 wherein it is held that, “The role attributed to the petitioner is not confined to participation in the mob of rioters but of heading the large crowd, holding a pistol in hand and releasing open fire shots. The video clipping and pictures played before this Court have shaken the conscience of this Court how petitioner could take law and order in his hands. Whether or not petitioner had intention to kill the complainant or any person present in the public with his open air pistol shots, but it is hard to believe that he had no knowledge that his act may harm anyone present at the spot. The worthiness of complainant’s statement recorded under Section 161 Cr.P.C. and petitioner’s claim that he had not aimed pistol to shot at the complainant, shall be tested at trial.”

What’s more, the Bench then also points out in para 16 that, “Moreover, it is not the case of petitioner that he was not involved in the alleged incident. In the opinion of this Court, the learned trial court has rightly held that the petitioner is alleged to have participated in riots and his picture speaks a volume about his involvement.”

As a corollary, the Bench then holds in para 17 that, “Keeping in mind the gravity of offence committed by the petitioner as also the facts of the present case, I am not inclined to grant bail to the petitioner.”

Finally, the Bench then concludes by holding in the last para 18 that, “The petition is accordingly dismissed while refraining to comment upon the merits of the prosecution case.”

To conclude, while certainly no one can deny that the denial of bail to the petitioner – Shahrukh Pathan by the Delhi High Court and that too explained meticulously by Justice Suresh Kumar Kait of the Delhi High Court is definitely a big setback to him but that does not mean that all the roads have ended for him. He still has the option to appeal further before a Division Bench in the Delhi High Court. Also, the Delhi High Court has not finally decided on the merits of the prosecution case and has even refrained to comment on it. It goes without saying that all this cannot be ignored certainly. Of course, the case is yet to be finally decided and until that happens we have no option but to keep our fingers crossed till then on what will be the final outcome as we obviously cannot second guess as to what the Court will finally decide!

Sanjeev Sirohi

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