IN THE COURT OF LEARNED CHIEF JUDGE (NIA)

IN THE CITY & SESSIONS COURT, AT CALCUTTA

ANTICIPATORY BAIL APPLICATION NO. ____ OF 2023

IN THE MATTER OF:

UNION OF INDIA (NIA)
Versus
MD. FAKRUDDIN SIDDIQUI AND OTHERS

FOR
1. MD. SALAUDDIN SIDDIQUI
S/o- Md. Mazhar Hossain,
R/o- 5/2/H/43, Bhukailash Road,
Kolkata, West Bengal-700023

2. MD. IDUL SIDDIQUI

S/o- Md. Mazhar Hossain,
R/o- 5/2/H/43, Bhukailash Road,
Kolkata, West Bengal-700023 …Applicants

APPLICATION U/s 438 OF THE

CODE OF CRIMINAL PROCEDURE,

1973 FOR THE GRANT OF BAIL TO

THE APPLICANTS/ACCUSED IN

FIR NO. 482 OF 2022 DATED

10.10.2022 REGISTERED AT THE

INSTANCE OF EKBALPORE PS

MOST RESPECTFULLY SHOWETH:

1. That the present application has been filed seeking anticipatory bail in the

as the Applicants herein are apprehending arrest in FIR No. 482 of 2022

dated 10.10.2022 registered at the instance of PS: Ekbalpore, Kolkata U/s

147, 148, 149, 152, 353, 427, 436 & 307 of Indian Penal Code and U/s 4,

5 & 6 of the Explosive Substances Act and U/s 25 & 27 of the Arms Act

and Section 3 of the PDPP Act. Subsequently, Arms Act and PDPP Act

have been deleted from the Chargesheet.

2. That the National Investigation Agency was directed to take up the

investigation of the aforesaid case vide Order No. F.No.

11011/89/2022/NIA dated 17.10.2022 passed by the Government of

India, Ministry of Home Affairs and the National Investigation Agency

was pleased to re-register the case as RC-45/2022/NIA/DLI, dated

18.10.2022 U/s 147, 148, 149, 152, 353, 332, 427, 436 & 307 of the

Indian Penal Code and U/s 4, 5 & 6 of the Explosive Substances Act and

U/s 25 & 27 of the Arms Act and Section 3 of the PDPP Act.

3. The narration of the case of the prosecution as per the FIR is as under: -

a. The FIR in question was registered against the Applicants on the

information received by SI Omrit Mukherjee of PS Ekbalpore.

 b. It is the case of the prosecution that on date 09.10.2022 at about 22.20

hrs the aforementioned officer received information about the

aforementioned incident that unknown accused person of two

communities assembled unlawfully near 8/H/1, Bhukailash road,

Kolkata-700023, equipped with deadly weapons like fire arms, bomb

and sticks etc., over the issue of affixing Islamic flag near 12/1, Mayur

Bhanj Road, Kolkata-700023.

c. It is further alleged that the aforementioned people engaged in brick

battling, stone pelting and bombing each other and further engaged in

communal violence thereby damaging number of vehicles parked

nearby.

d. It is alleged that the mob then deterred Police Personnel from

discharging official duties by physically assaulting them and damaged

and attempted to kill the police personnel as well.

e. Hence the present FIR came to registered.

4. That the Government of India, Ministry of Home Affairs vide order no.

F.No. 11011/89/2022/NIA dated 17.10.2022 directed the National

Investigation Agency (NIA) to take up investigation of the

aforementioned case. In pursuance of the abovementioned order, National

Investigation Agency registered a fresh FIR bearing no.

RC-45/2022/NIA/DLI U/s U/s 147, 148, 149, 152, 353, 332, 427, 436 &
 307 of the Indian Penal Code and U/s 4, 5 & 6 of the Explosive

Substances Act and U/s 25 & 27 of the Arms Act and Section 3 of the

PDPP Act.

5. That on date 07.01.2023, chargesheet bearing no. 03 of 2023 has been

filed by the National Investigation Agency, Delhi. The Applicants herein

has been charged with offences U/s 120B, 147, 149, 152, 332, 353 & 436

of IPC and U/s 3 & 5 of Explosive Substances Act, 1908.

6. It is alleged that on the occasion of Nabi Diwas on 09.10.2022, a person

named Md Zeeshan Akbar @ Zeeshan, marked as A-12 in the present

chargesheet and Md Ershad @ Md Irshad @ Tipu, marked as A -13 in the

same chargesheet, hatched a criminal conspiracy to take revenge from the

people of the Hindu community by attacking the residents of Gali no. 8,

Bhukailash Road, Kolkata. It is interesting to note that though the

Respondent states that A-12 and A-13 hatched a criminal conspiracy, the

same chargesheet states that A-3 i.e., the Applicants herein, along with

the other accused persons hatched a criminal conspiracy and attacked the

dwelling houses/shops of Hindu Community thereby hinting at a major

contradiction on the part of the Respondent herein.

7. It is alleged that there were approximately 120 people involved in the

commission of the present offence. However, the Respondent seems to be

certain about the involvement of the present Applicants, despite having

no concrete evidence as to the active involvement of the present

Applicants.

8. It further alleged that the statements of the witnesses/victims recorded

U/s 161 CrPC and 164 CrPC corroborate the fact that the present

Applicants was actively involved in hatching the criminal conspiracy on

09.10.2022. It deserves mention here that there are no victims whatsoever

in the present case and none of the statements given by the witnesses’ U/s

161 CrPC state that the present Applicants were actively involved in the

commission of the offences concerned.

9. That the Applicants have preferred the present application seeking

anticipatory bail on the following grounds: -

A. That the chargesheet consists of vague and generic allegations and is

devoid of any merits as against the Applicants herein. The Applicants

herein has been roped in the present case merely because an umbrella

of assumption of guilt has been arrived at by the Respondents.

B. That the present Applicants were not named as Accused persons in the

present FIR. The FIR was registered against 120-150 unknown

miscreants and the Applicants have not been named as Accused

persons in the said FIR. It deserves mention that prima facie no case is

made out against the Applicants herein as the FIR was filed against

unknown persons. Though it is alleged in the chargesheet that there

are witnesses to the present case, the question of their credibility and

reliability cannot be tested at the stage of bail. That reliance can be

placed on a judgement of the Supreme Court in Satish Jaggi v. State

of Chattisgarh & Ors, wherein it has been held that at the stage of

granting the bail only the question of whether or not a prima facie case

is made out can be considered and the question of credibility and

reliability can only be tested at the trial.

C. That the Applicants herein are eligible to be released on grounds of

parity. The Hon’ble Calcutta High Court vide its order dated

19.04.2023 was pleased to enlarge the other accused persons on bail.

The observations made by the Hon’ble High Court while releasing the

other Accused persons on bail has observed that most of the penal

offences are bailable and nothing has been recovered from them. That
 the Hon’ble High Court also remarked that though it is the case of the

NIA that a large number of people assembled and threw bombs at the

houses of the other community and damage to property was caused,

no lives were lost. Further, none of the protected witnesses who

claimed to be present at the spot suffered injuries. That the

observations made by the Hon’ble High Court of Calcutta are proof

that the story of the prosecution has definitely not served a fruitful

purpose and the appellants incarceration despite the filing of the

chargesheet is only resulting in travesty of justice.

A copy of the order dated 19.04.2023 of the High Court of Calcutta is

annexed and marked as Annexure 1.

D. That the National Investigation Agency erred in taking cognizance of

the present case. The National Investigation Agency, is a statutory

body, constituted for the purpose of investigating and prosecuting

offences affecting the sovereignty, security and integrity of India,

security of State. The Act empowers the National Investigation

Agency to investigate scheduled offences scheduled as mentioned in

the schedule annexed to the National Investigation Act, 2008. It

deserves mention that the offences levelled against the Applicants do

not fall within the ambit of offences contained in the Schedule

 annexed to the Act and hence NIA in the present case ought to have

not taken cognizance of the present case.

E. That the chargesheet in question shows contradiction at the very

outset. The Respondent state has, allegedly after thorough

investigation, concluded that A-12 and A-13 hatched a criminal

conspiracy to attack the residents of Gali no. 8, Bhukailash Road,

Kolkata thereby confirming that A-12 and A-13 were in fact the

masterminds of the said conspiracy. However, the Respondents have

then asserted, by the way of the same chargesheet, that the present

Applicants were actively involved in conspiracy that led to a full-

blown attack on the people belonging to the Hindu community,

thereby contradicting their statements from the very outset.

F. That the Respondents have failed to define the specific role of the

Applicants in the present case despite having access to the CCTV

footage that was seized by the Respondent. The logical inference

drawn in cases where the CCTV footage of an incident is ready and

available with the Respondents is that, the Respondents would be in

position to make out the role played by each of the Accused persons.
 However, in the present case despite having access to the CCTV

footage, the Respondents have levelled generic and contradictory

allegations as against the Applicants herein in order to rope him within

the claws of a draconian act.

G. That the Respondents have termed a simple altercation between

people as violence involving two communities at large. The

Respondents have not been able to bring on record one victim of the

alleged communal violence from the general public. History is witness

that in cases of communal violence there is a loss of public life and

property at large. Though it is alleged that there is damage caused to

the public property, there not a whisper of a single victim from the

society at large. Communal violence being an unplanned altercation

between two ethnic groups, the resultant effect being the victimisation

of general public. It is interesting to note that though the present case

speaks of communal violence there is not a single accused form the

community of Hindus and neither is there a single victim from the

general public thereby raising a suspicion as to the very nature of the

offence. It prima facie appears as a case of discrimination against one

community at large.
H. That no test identification parade was conducted by the Respondents

of the Applicants herein.

I. That no recovery of questionable objects/items were made from the

present Applicants. The search and seizure made from the house of the

Applicants shows that no questionable material was seized from the

residence of the Applicants herein hence showing that the Applicants

herein was not involved in committing the acts as alleged in the

chargesheet in question.

J. That the Respondents have conducted the search after a prolonged

period of 2 months. It is pertinent to mention that the search conducted

by the Respondents herein has been conducted after a duration of 2

months and it can therefore be said that the evidence, if any, collected

by the way of the said search could at best be tainted.

K. That the ingredients required for constituting an offence U/s 147 of the

IPC is not made out against the Applicants herein. That Section 147

IPC lays down the punishment for rioting. It would not be out of

context to mention that the Applicants was not a part of any assembly.

It would be relevant to quote the definition of an Unlawful assembly.

“Unlawful assembly.—An assembly of five or more persons is

designated an “unlawful assembly”, if the common object of the

persons composing that assembly is— First.—To overawe by criminal

force, or show of criminal force, 12[the Central or any State

Government or Parliament or the Legislature of any State], or any

public servant in the exercise of the lawful power of such public

servant; or Second.—To resist the execution of any law, or of any

legal process; or Third.—To commit any mischief or criminal trespass,

or other offence; or Fourth.—By means of criminal force, or show of

criminal force, to any person, to take or obtain possession of any

property, or to deprive any person of the enjoyment of a right of way,

or of the use of water or other incorporeal right of which he is in

possession or enjoyment, or to enforce any right or supposed right; or

Fifth.—By means of criminal force, or show of criminal force, to

compel any person to do what he is not legally bound to do, or to omit

to do what he is legally entitled to do.”

It is important to mention that the assembly of people from the

Muslim Community was not an unlawful assembly as they had not

gathered to do any of the acts that is mentioned in the section above,

but had rather gathered to celebrate the auspicious day i.e., Nabi

Diwas, which marks the birth anniversary of the Prophet Muhammad.

That there is nothing in law that barres the people of a particular faith

from practising or professing a particular religion as it is a

fundamental right enshrined in the Constitution of India. The

 allegations of rioting levelled by the Respondents against the people

belonging to just one community shows nothing but ingrained bigotry.

L. That the ingredients of Section 147 are not made out against the

Applicants herein, the question of committing an offence U/s 149 of

the Indian Penal Code does not arise as the assembly of people was

not an unlawful assembly in the first place.

M. That the offences U/s 332, 353 are not made out against the Applicants

herein. The Applicants herein has in no way deterred the public

servant from carrying out his duty and neither has he voluntarily

caused any hurt to the police personnel. There is no evidence on

record showing that the Applicants herein was involved in the

commission of the offence and hence the ingredients essential in order

to constitute an offence under this section are absent as against the

Applicants herein.

N. That the ingredients required for constituting an offence U/s 436 is not

made against the Applicants herein. The Respondents have failed to

place on record any evidentiary proof showing an involvement of the

Applicants herein in committing an offence under the section

 mentioned herein and hence no offence is said to have been made out

by the Applicants herein U/s 436 IPC.

O. That no offence is made out as against the Applicants under Section 3

of the Explosive Substances Act. The Applicants herein have not

committed an offence under any of the sections mentioned above. The

relevant section is quoted hereunder:

“Section 3- Punishment for causing explosion likely to endanger life

or property.- Any person who unlawfully and maliciously causes by

any explosive substance and explosion of a nature likely to endanger

life or to cause serious injury to property shall, whether any injury to

person or property has been actually caused or not, be punished with

transportation for life or any shorter term, to which fine may be

added, or with imprisonment for a term which may extend to ten

years, to which fine may be added.

The Applicants herein have not done any act under section 3 of the

Explosive Substance. It is relevant to note that the Respondents have

nowhere in their chargesheet stated that the Applicants have caused

any explosion or made or kept explosives with intent to endanger life

or property. Even if it is assumed, without admitting, for the sake of

arguments that the Applicants were a part of the mob that caused the

riots, the Respondents have not placed on record a shred of evidence

 showing the active involvement of the Applicants in causing the

explosion. A mere vague allegation that people of one community

were throwing bombs at the people of the other community will not

suffice. Further, no recovery of any explosives has been made from

the Applicants herein. Hence, the present section cannot be attracted to

the Applicants herein.

P. BECAUSE no offence is made out against the Applicants U/s 5 of the

Explosive Substances Act. The relevant section is quoted is hereunder:

“Section 5- Punishment for making or possessing explosives under

suspicious circumstances.- Any person who makes or knowingly has in

his possession or under his control any explosive substance, under

such circumstances as to give rise to a reasonable suspicion that he is

not making it or does not have it in his possession or under his control

for a lawful object, shall, unless he can show that he made it or had it

in his possession or under his control for a lawful object, be

punishable with transportation for a term which may extend to

fourteen years, to which fine may be added, or with imprisonment for

a term which may extend to five years, to which fine may be added.

It is relevant to mention that the Applicants herein have not made any

explosives or had in their possession any explosives under suspicious

 circumstances. The Respondents has just made a vague and generic

allegation as against the Applicants herein. It is the case of the

Respondent that the Applicants had conspired with the others and

attacked people of the other community. Nowhere has it been

mentioned that the Applicants were involved in making of the

explosives. Further, no recovery of any explosives or any material

whatsoever needed for the making of the same was recovered from the

Applicants herein. If the Applicants are neither involved in making or

possessing of any explosives nor is he is an abettor, the question of

punishment does not arise. Hence section 3 & 5 of the Explosive

Substances Act are not attracted to the present Applicants.

Q. BECAUSE the chargesheet in question ex facie is a well spun web of

discrimination and bias against the community of Muslims at large.

The Respondents, by the way of their chargesheet, are so deeply

ingrained in bigotry that they have not even paid heed to the role

played by the people belonging to the community of Hindus in

antagonising or provoking the community of Muslims. It is the case of

the Respondents that the Applicants were engaged in communal

violence. The words Communal Violence, by their very definition

means, “People belonging to two different religious communities

 mobilised against each other and carrying the feelings of hostility,

emotional fury, exploitation, social discrimination and social

neglect”. However, the Applicants charge sheeted are people

belonging to just one faith i.e., Muslims. The Respondents have

conveniently assumed that the present case is the doing of only the

Muslims and the others were nothing but victims of their atrocities.

The said fact can be ascertained from chargesheet submitted by the

Respondent wherein they state that people from two communities had

assembled unlawfully, however, very conveniently only the people of

Muslim faith have been implicated in the present case.

R. That the Respondents have by the way of their chargesheet stated that

on the issue of affixing Islamic flag, the people of two communities

gathered unlawfully on 09.10.2022. It is interesting to note that the

Respondents have painted a picture so as to show that the people of

the Muslim community gathered unlawfully for the purpose of

creating havoc and disrupting the peace. However, they have skirted

around the truth of the purpose of the gathering. It is a fact that

09.10.2022 is observed as Nabi Diwas, a day of celebration to

commemorate the birth anniversary of Prophet Muhammad, during

which gathering of people from the Muslim community in large

numbers is a common phenomenon. The gathering that is spoken of

 was for the purpose of celebration and not rioting. If every religious

gathering is given the colour of riots, it would demolish the very

principles enshrined in the Constitution that enables people of this

country to freely profess, practice and propagate the religion of their

choice.

S. That Reliance can be placed on Joginder Kumar vs. State of U.P.

(1994) SCC (4) 260, wherein the Hon’ble Supreme Court held that

“…No arrest can be made because it is lawful for the police officer to

do so. The existence of the power to arrest is one thing. The

justification for the exercise of it is quite another. The police officer

must be able to justify the arrest apart from his power to do so. Arrest

and detention in police lock-up of a person can cause incalculable

harm to the reputation and self-esteem of a person. No arrest can be

made in a routine manner on a mere allegation of commission of an

offence made against a person….”

T. That in the case of Satender Kumar Antil vs Central Bureau of

Investigation & Anr. (2022 Livelaw SC 577) the Supreme Court has

held that…. “An accused person who enjoys freedom is in a much

better position to look after his case and to properly defend himself

than if he were in custody. As a presumably innocent person he is

 therefore entitled to freedom and every opportunity to look after his

own case. A presumably innocent person must have his freedom to

enable him to establish his innocence”.

U. Because the Supreme Court of India, in five bench landmark

judgement, namely, Gurbaksh Singh Sibbia v. State of Punjab

[1980 AIR 1632] held that while considering personal liberty as a

fundamental right under Article 21, declared that any provision of

law, which deals with personal liberty of an individual cannot be

unduly whittled down by reading restrictions into it, especially the

ones, which find no mention in the statute itself.

V. That there is no question of tampering with the evidence as the

statements of the witnesses U/s 164 CrPC have already been recorded

and the chargesheet has already been filed. Further the Applicants

herein complied with the notice served upon him U/s 160 CrPC hence

proving his bonafide.

W. That the Applicants are permanent residents of Kolkata. They have

their families residing permanently in Kolkata and have deep roots in

the society. There is no question of them fleeing from justice by any

stretch of the imagination.

X. That the Applicants herein have clear antecedents and have not

previously been convicted of any offence.

Y. That the Applicants are the beard earners of the family and look after

their old and ailing parents.

Z. That the Applicants/ Accused undertakes to attend the proceedings

before the concerned Court regularly, as and when called upon to do

so, as also join further investigation, if any.

AA. That the Applicants further undertake to abide by all the conditions

which this Hon’ble court pleases to impose to enlarge him on bail.

BB. That no other bail application or any other similar application is

pending before this Hon’ble Court or any other court.

PRAYER
10. In the above-mentioned facts and circumstances this Hon’ble Court may

be graciously be pleased to:

a) Allow the present Application and enlarge the Applicants herein on

anticipatory bail in RC-45/2022/NIA/DLI, dated 18.10.2022;

originally arising out of FIR No. 482 of 2022 dated 10.10.2022

registered at the instance of Ekbalpore PS and or;

b) Pass such order (s) which this Hon’ble Court deem fit and proper may

also be passed in favour of the Applicants.

Through

Advocates for the Applicants