IN THE COURT OF DISTRICT & SESSION JUDGE, PATIALA HOUSE

COURTS NEW DELHI

BAIL APPLICATION NO. OF 2019
IN CUSTODY SINCE 31.10.2018
FIR NO.
U/S 397/398/34 IPC
25/54/59 ARMS ACT
NDOH:
PS. VASANT
KUNJ(NORTH)
IN THE MATTER OF:

STATE ….PETITIONER/COMPLAINANT
VERSUS

ABC & ORS. ….ACCUSED/APPLICANT

INDEX

S.NO PARTICULARS PAGE NO

.
1. First Bail Application on Behalf of the Accused
with Affidavit in support

2. True copy part of charge sheet

3. True copy of inner case diary

4. Vakalatnama

APPLICANT/ACCUSED
NEW DELHI
THROUGH
DATE:

ADVOCATE NITISH BANKA/LAKSHYA

MANCHANDA
8232 B-11 VASANT KUNJ DELHI 110070
9891549997
 IN THE COURT OF DISTRICT & SESSION JUDGE, PATIALA HOUSE
COURTS NEW DELHI
BAIL APPLICATI ON NO. OF 2019
IN CUSTODY SINCE 31.10.2018

FIR NO.
U/S 397/398/34 IPC
25/54/59 ARMS ACT
NDOH:
PS. VASANT
KUNJ(NORTH)

IN THE MATTER OF:

STATE ….PETITIONER/COMPLAINANT
VERSUS

ABC & ORS ….ACCUSED/APPLICANT

First Bail Application on Behalf of the Accused ABC U/S 439 CrPC

MOST RESPECTFULLY SHOWETH

1. That, the present bail application is filed by accused ABC who is in

judicial custody for now more than one year.

2. That, the present accused is charged with offence under section

397/398 IPC R/w 34 IPC.

3. The allegations mentioned in the charge sheet are false and fabricated

against the accused person and he has been falsely implicated in the

case.

4. That, the charge sheet is filled with contradictions, conjecture and

surmises that raises doubts on the prosecution case itself.

Contradiction-I

That as per the allegations made by the complainants themselves.

They have saw 4 persons coming in the shop for doing inspection

before the alleged incidence. At the time of incidence same four person

allegedly done the incidence.

But as per the police on examination of CCTV footage shows that two

people came into the shop for checking and at the time of incident

four person entered the shop one of the person was same.

The inherent contradiction goes into the root of the matter wherein the

facts before the incidence are contradictory.

Contradiction -II

The complainant no where in the statement mentioned that he has

told the incident to his landlord Dayanand and neither in the

statement he says that the Dayanand helped with other persons to

take the accused to the hospital, his presence at the time of the

incidence is also doubtful as his residence is behind the shop. Despite

being busy on a phone call he identifies the accused person with clear

precision.
 Contradiction III

There is another witness named Aslam who also allegedly saw the

incidence and allegedly states that two accused running after

incidence.

Contradiction-IV

The complainant despite getting shot at point blank range got time to

collect the Money and kept it safely in locker. While accused person

who were in four in number fled without taking money.

5. That accused person is falsely implicated in the case is clear from the

fact that no recovery of attack weapon was there from the accused

person and neither the accused as per the allegations themselves was

using any attack weapon rather it is allegedly the accused person was

guarding the shop.

6. That, allegedly also he has no role to play in the entire incident as

alleged he is accused of guarding the shop. A money exchange shop

which has a CCTV camera outside. The complaint and the charge

sheet is silent on any demand of money or extortion made by any of

the accused therefore none of the sections as charged is applicable on

accused. It is also not the case of the prosecution that the present

accused had an intention to murder the complainant and his brother.

7. That, if the accused had intention to do dacoity he would not have left

the money which was allegedly kept in open. No incidence of dacoity

happened and accused did not participated in any of the event

allegedly took place inside shop. He neither had any deadly weapon,

neither done dacoity or robbery and neither hurt anybody during the

incident. There was not even an attempt to do robbery or dacoity as

such there are no allegations of demand of money or an attempt to

take away the money, rather the fact of the matter is that the money

is kept in the safe custody of complainant himself and no attempt is

done by the accused to take away the money.

8. That, the accused is charged under 397 and 398 IPC which do not

create any offence but merely regulate the punishment provided for

robbery and dacoity. Also, to convict the accused under section 397

and 398 IPC it is necessary to prove that at the time of

robbery/dacoity, the accused was armed with deadly weapon and not

one of the robbers who was with him carried one. The section

postulates the acts of the accused to be relevant. it thus negates the

application of the principle of constructive and vicarious liability as

provided in S. 34. Also, in order to attract the offence under S. 398

IPC the person cannot be convicted unless he is armed with deadly

weapon. The offences under 397 and 398 are attracted to give

aggravated form of punishment thus they are not substantial offences

 in themselves. The Hon’ble Apex court Judgement is clear on this

aspect.

9. That it is the case of the prosecution that the money was kept in galla

and despite being injured the complainant himself kept money in the

locker while the accused allegedly flee, therefore it can be said that

there was no attempt at all of dacoity/robbery. Further there are no

allegation with respect that the accused persons threat and extort

money from the complainant as far as the present accused is

concerned he was allegedly standing in the shop, if he had an

intention to rob the shop he was in the position to do so easily as

there were allegedly 4 members but he did not do so. The case of the

prosecution is based upon the facts which has mens rea but does not

comes with the support of actus rea, therefore no offence is made out

as far as present accused is concerned.

10. That Applicant is neither a previous convict nor involved in any

other similar offence in Delhi or anywhere in India.

11. That the investigation in the case has been completed and

charge sheet is already being filed, if any conviction on aforesaid

charges in any case is unsustainable and if there is alteration of

charges then the accused at least should have benefit of bail at this

stage. The charge sheet itself suffers from wrong charges and is based

on events which are not there in charge sheet.

 12. That the applicant undertakes to abide by any condition, if any

imposed by this Hon’ble Court at the time of granting bail.

13. That the applicant is of young age and has old and ailing

parents to take care off. He is a sole bread earner in the family and if

kept in prison for long duration then bad influence of hardened

criminals will affect.

14. That trial is yet to begun and will take time and there is no

proof or evidence that accused will influence any witness or tamper

with evidence.

15. That, applicant is ready to produce sound surety if granted bail.

Prayer.

It is humbly prayed to release accused Asif Ali on bail till disposal of the

present case in the interest of justice.

Pass any further order or directions in in tersest of justice.

APPLICANT/ACCUSED
(In JC)

Dated:

New Delhi

THROUGH
NITISH BANKA/LAKSHAY MANCHANDA
(COUNSEL FOR THE APPLICANT)
8232, B-11, VASANT KUNJ,
NEW DELHI-110070
Mob; 9891549997