Delhi High Court censures order granting anticipatory bail to murder accused, calls it ‘perverse’, ‘unjustified’

The order further said that prematurely determining that custodial interrogation was unnecessary while such an investigation continues was legally unsound.

“A bail court should not, without very strong reasons, take a step that obstructs or pre-emptively negates the practical ability to carry out those investigative processes” it added.

Case

The state moved the high court against the session court’s order of granting anticipatory bail to the accused, Vikas Tomar, who allegedly paid Rs 4 lakh to the shooters to kill the victim.

The purported murder was linked to an ongoing gang rivalry.

The court highlighted the different versions given about the whereabouts and status of the accused’s cellphone, ranging from loss to theft to other unexplained theories and said, “When a bail court accepts an accused’s narrative in preference to a prosecution case that rests on multiple, interconnected pieces of corroboration, the liberty granted may materially obstruct ongoing investigation.”

“It can complicate recovery of devices, frustrate custodial confrontation with other accused, and delay or limit the investigation,” the court added.

Key findings

• Session court’s order contains serious legal flaws since it provides no cogent reasons for granting bail in this case, which involved complications and allegations against, not only a single person, but all the other accused persons, which point towards the commissions of offence in an “organised and sophisticated manner”.
• Order was unjustified and reversed since it was granted without properly considering the gravity of the offence, the accused’s role, or the real risk of interference, especially in view of the testimonies of co-accused persons and digital evidence, and strong circumstantial evidence.
• Granting liberty to such accused threatens the fairness of the trial and endangers the administration of justice.
• Decisions about how to conduct an investigation were matters for the investigating agency and ultimately for the trial court to assess in the context of trial, and not for a bail court to resolve conclusively.
• Granting anticipatory bail without considering investigation aspects such as forensic analysis of devices, IP tracing, confrontation of co-accused and recovery of further material would risk prejudicing the investigation and the trial.
• Court must exercise discretion cautiously and sparingly, thereby weighing risk of absconding, likelihood of tampering with witnesses or evidence, gravity of the offence, strength of the prima facie case and whether further custodial interrogation is necessary.

Arguments

State’s additional standing counsel Sanjeev Bhandari argued that granting anticipatory bail to the accused was erroneous and liable to be set aside. He further submitted that Tomar had a significant role in the larger criminal conspiracy concerning the murder and also pointed out his deliberate evasion and non-cooperation, mentioning his inconsistent explanations regarding his mobile device, variously claiming that it was lost, stolen, or thrown into a river.

He also mentioned that the accused was continuously in touch with the gang leader during and after the commission of the offence, as it was reflected through the Call Data Records (CDR) and Internet Protocol Detail Record (IPDR) analysis.

Accused’s counsel Sunil Kumar Mittal argued that the allegation of non-cooperation was “unfounded”.

He said his client had demonstrated “full willingness to participate in the investigation” whenever required. The lawyer said no specific allegation was levelled against Tomar in the initial stage of the investigation and that the FIR did not name him.
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