Mohd Faiyaz v. State Of Uttarakhand

present criminal appeal are that FIR No.23 of 2024, under Sections 147, 148, 149, 307, 332, 353, 427, 435, 436, 120B, Section 3/4 of the Prevention of Damage to Public Property Act, 1984 and Section 15/16 of Unlawful Activities (Prevention) Act, 1967 were registered against unknown persons in Police Station Banbhoolpura, District Nainital on 08.02.2024. In the FIR, it has been alleged by the informant that while the team of 1 administration and police went to demolish and remove the illegal construction at Malik-ka-Bagicha in Haldwani on 08.02.2024, several persons assembled there and committed violence, arsoning and rioting with the team of administration and police; hurled petrol bombs, fired from illegal weapons and snatched the weapons of the police. It is also been mentioned in the FIRs that the rioters even attacked the then police SHO of Police Station Mukhani, Mukhani’s vehicle and snatched the service revolver of the SHO which were not recovered till date. The appellant/applicant has been arrested on

20.02.2024 on the charge of the aforesaid offences.

3. It is admitted that the provisions of Section 15/16 of the Unlawful Activities (Prevention) Act, 1967 were invoked subsequently during investigation against the appellant/applicant and other persons who have been arrested during investigation. The name of the appellant/applicant came into light on being identified in CCTV footage.

4. The bail application of the appellant/applicant has been rejected by the learned First Additional Sessions Judge, Haldwani, Nainital as stated above by the impugned judgment and order. It is feeling aggrieved aforesaid judgment order, appellant/applicant is before this Court.

5. The objections were called from the State. Delay in filing the objections is condoned for the reasons stated in the affidavit. Delay condonation application (IA No.2/2024) thus stands disposed of. Objections filed on behalf of the State is taken on record.

6. The State in its objections opposed the bail application by stating that the appellant/applicant was involved in the serious offence of rioting, arsoning and 2 violence that too with the officers of the administration and police. It has also been stated that in the statement of Mukesh Saxena-reporter (independent witness) recorded under Section 161 Cr.P.C., the involvement of appellant/applicant is proved; the illegal arms and petrol bombs were stored under a well planned conspiracy and public officers were attacked with the intention of killing them by using petrol bombs etc. by demonstrating criminal force. The State further stated that the criminal activities done by the appellant/applicant falls within the definition of terroristic attack with the purpose of creating terror among the people and the attack caused by the crowd of which the appellant/applicant was part of, caused irreparable damaged to the property of nation and it created fear in the mind of general public. Therefore, offence is made against appellant/applicant.

7. It is further submitted by the State that after completion of the investigation, the investigating officer has filed a charge-sheet against the appellant/applicant before the court concerned.

8. Heard learned counsel for the parties and perused the record.

9. Learned counsel for the appellant/applicant submitted that appellant/applicant was not named in the FIR; he has falsely been implicated with the incident; he has no concern with the alleged violence rioting and arsoning. He further submitted that there is no concrete evidence with the prosecution connect appellant/applicant with the incident happened on

08.02.2024 at Malik-Ka- Bagicha in Halwani. He referred to the statement of Mukesh Saxena under Section 164 Cr.P.C. and argued that even in these statements, the 3 name of appellant/applicant-Mohd. Faiyaz is there. He further submitted that the appellant/applicant is under incarceration since 11.02.2024 (though in memo of appeal date of arrest mentioned is 20.02.2024). But the role assigned to appellant/applicant is of pelting stones with others named in the statement of Mukesh Saxena and, therefore, he is entitled to be released on bail by this Court after setting aside the judgment and order impugned. He further submitted that merely on the basis of a CCTV footage, he cannot be nailed as he was resident of the area who helped his father in his restaurant.

10. Per contra, the learned Deputy Advocate General strongly opposed the appeal and grant of bail to the appellant/applicant. He also relied upon statement of witness-Mukesh Saxena (independent witness) recorded under Section 161 to nail the appellant/applicant with the alleged crime and offences. He further submitted that though he has not been named in the FIR because the FIR was against unknown persons, but his name was figured during investigation and he was identified from the video footage of the incident.

11. We have perused the record of the case and the statements recorded under Section 161 Cr.P.C. of Mukesh Saxena, Constable Bhupendra Jyestha and Shubham S/o Vishwas. In statement under Section 161 Cr.P.C, is mention the name appellant/applicant-Mohd. Faiyaz who was shown to have pelting stones. He was also spotted in CCTV footage.

12. Having considered the submissions of both the learned counsel for the parties and having gone through the record of the case, this Court is of the view that there is no direct evidence against the appellant/applicant- 4 Mohd. Faiyaz. The prosecution could not tell us as to who has named or identified the appellant/applicant- Mohd. Faiyaz even from the CCTV footage. Moreover, he is a local boy and he might have been spotted in CCTV footage. It is also in the mind of this Court since the appellant/applicant has already spent more than one year in custody in connection with the aforesaid alleged FIR, he is entitled to be released on bail.

13. Accordingly, the present criminal appeal is allowed. The judgment and order dated 09.09.2024 impugned in the instant appeal is hereby set-aside. The appellant/applicant-Mohd. Faiyaz is directed to be released immediately on bail on his executing personal bond and furnishing two reliable sureties, each of the like amount to the satisfaction of the Court concerned inFIR No. 23 of 2024, if he is not wanted in any other criminal case.

14. Pending application, if any, stands disposed of accordingly. (Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

05.06.2025 AK 5