New Delhi : While granting bail to a man accused in a road rage case the Delhi Court said that arrest after compliance of notice to appear before the investigation officer violates the mandate of law.
In this case, co-accused persons caused grievous injury to one of the eyes of the victim. This case pertains to the area under police station Wazirabad.
Vacation District Judge Neeraj Sharma granted regular bail to the accused Tarun who had appeared before the investigation officer (IO) on a notice and joined the investigation. Thereafter, he was arrested by the IO.
The Court said
The Court said, "Once the accused/applicant stands served with the notice under Section 35(3 ) BNS, there is a presumplion that the accused is not required to be arrested by the IO and in the present case, as the opinion regarding the grave nature of the alleged injury was very much available with the IO before issuing the notice, this Court is of the opinion that once, the accused has complied with the said notice, the grave nature of the injury cannot subsequently be a ground for arresting the accused/applicant despite having complied with the notice and without any cogent reasons for the same."
"In view of the forgoing discussion, this Court is of the opinion that the custody of the accused/applicant is clear violation of the mandate of the law and accordingly, the accused is admitted to bail on furnishing a bail bond in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of the court," Vacation Judge ordered on December 27.
Advocate Deepak Sharma and Mukesh Sharma, Counsel for the applicant/accused argued that the accused had intentionally been charged with Section 117 of Bhartiya Nagrik Sanhita (BNS), though even as per the FIR, the applicant/accused had joined the scuffle later on and by that time the complainant had allegedly already suffered eye injury by the co-accused.
Defence counsel relied
Defence counsel relied on the fact that despite having joined the investigation after service of the notice under Section 35(2) BNS, the applicant/accused got arrested by the IO without their being any reason.
On the other hand, the Additional public prosecutor (APP) opposed the bail application and submitted that as the offence under Section 117(3) of BNS is grave, the accused is not entitled to bail.
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He also submitted that in the present matter, the investigation is yet to be completed and the accused may threaten the witnesses in the present case.
The court said
The court said that admittedly, in the present case, the notice u/s 35(2) BNS was given on 07.12.2024 and also the applicant/accused herein joined the investigation on 07.12.2024 itself.
As the accused has joined the investigation in compliance with the said notice, as per the mandate of Section 35(5) BNSS, the accused/applicant could not have been arrested unless, for the reasons to be recorded, the police officer believes that the accused is required to be arrested.
On being specifically asked by the Court as to when the opinion as to the grave nature of the injury allegedly inflicted by the accused persons to the complainant was obtained by the IO, it was replied by the IO that the same was obtained on 27.11.2024.
