The Delhi High Court, on Tuesday, set aside the Trial court order that had discharged Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar and eight others in the Jamia violence case. The single judge bench of Justice Swarana Kanta Sharma observed that protests should be peaceful and a protest that endangers others, damages property cannot receive constitutional protection. While framing charges against 11 accused (including Imam, Tanha and Zargar), the court observed that only charges of rioting, unlawful assembly and obstructing the police are made out. The court reached this conclusion after perusing videos and photographs and noted that the accused were part of the violent protests, even though none was seen clearly as indulging in any violent act.
The trial court
The trial court framed charges against Mohd Ilyas (Accused no. 1) and discharged the remaining 11 accused. The court had perused the chargesheets and observed that “the police were unable to apprehend the actual perpetrators behind commission of the offence” and ropes in the accused (who were discharged) as scapegoats. The court further observed that the police acted in a perfunctory and cavalier fashion against the 11 accused (who got discharged eventually by the court).
“Liberty of protesting citizens should not have been lightly interfered with. It would be pertinent to underscore that dissent is nothing but an extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19 of the Constitution of India, subject to the restrictions contained therein. It is therefore a right which we are sworn to uphold,” the trial court said. (Para 7)
The court also said that dissent needs to be given space as dissent is reflective of what pricks a citizen’s conscience.
“In the present case, the investigative agencies should have incorporated the use of technology, or have gathered credible intelligence, and then only should have embarked on galvanizing the judicial system qua the accused herein. Else, it should have abstained from filing such an ill-conceived chargesheets qua persons whose role was confined only to being a part of a protest,” the court had said in its order. (Para 7)
The reason why Mohd Ilyas was not discharged was because there were photographs of him clearly showing him hurling a burning tyre.
Background
The prosecution stated that the police received information on December 12, 2019 that some students/ex-students of Jamia Milia would gather at University to protest against Citizenship Amendment Bill and that they would march towards the Parliament. Hence necessary police staff was deployed there and Gate No.1 was barricaded. The prosecution said that a crowd began gathering there and “Although police had repeatedly urged the gathering to maintain peaceful demonstration, the protesters persisted in raising incendiary and antagonistic slogans against the government and law enforcement agencies”.
They also alleged that the mob threw stones at the police and “despite use of non-lethal methods such as mild force and gas shells to disperse the crowd, the protesters/rioters reportedly moved into the University area and continued their assault on the police”.
The state’s arguments
Before the Delhi High Court, the state raised a grievance that the trial court conducted a mini trial and that credibility of evidence, especially the statements of witnesses cannot be gone into at the stage of framing of charge.
The respondents’ arguments
The respondents primarily submitted that since they have been discharged by the trial court, the state should point out the material defects and illegalities in the impugned order since the trial court has meticulously considered all the evidence placed on record by the prosecution. They also argued that reliance placed on Call Detail Records of the respondents to prove their location at place of incident is of no consequence since all the respondents were either students or ex-students of Jamia and/or were living either in the campus of Jamia or in its vicinity.
They also contended that the prosecution cannot arbitrarily pick and choose people and arraign them as accused from a mob of thousands of persons while levelling no allegations against other persons who were part of the mob.
On framing of charges
The court referred to the law on framing of charges which is dealt with under section 228 of the CrPC. Further, section 227 of CrPC deals with discharge of the accused. The court cited Sajjan Kumar v. C.B.I. (2010) 9 SCC 368, the Supreme Court held that at the time of framing of charge, the Court has to look at all the material placed before it and determine whether a prima facie case is made out or not. “At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible,” the court had held.
The respondents’ individual submissions
For the accused, Mohd. Qasim, Mahmood Anwar, Shahzar Raza Khan and Umair Ahmed, counsel Mr MR Shamshad appeared and submitted that they were at the University but had left before the violence started.
Further, it was argued that accused Mohd Bilal Nadeem was only standing near the barricade. Vis-à-vis these accused, the court saw some video clips, and observed that they were in the first line of the mob, pushing the barricades against the police officers and raising slogans. “They were consciously part of the assembly which had turned violent and consciously did not leave the place of such violence and chose to remain part of it by insisting on going to a curfew imposed area,” the court observed.
Pertaining to Mohd. Abuzar and Mohd. Shoaib, the court observed that the chargesheets do not indicate that they were violent or had damaged property. Thus, they cannot be qualified as rioters, the court held.
Pertaining to Sharjeel Imam, Counsel Talib Mustafa submitted that he only campaigned in favour of peaceful protests and not violence, and he was himself a victim of violence on the day of incident. It was also contended that there was nothing on record to show that Sharjeel Imam was part of the alleged rioting mob on the day of incident as there was no photographs or video or any eye witness to support this. As far as his speech on the same day was concerned, the same a part of a different case.
From his speech however, the court gathered that he spoke about distributing the pamphlets regarding protest, and asked people to be prepared to get beaten up by lathis.
“He can be clearly seen instigating the mob and preparing them for further action, and he says that on 13.12.2019, there were 3000 to 4000 persons gathered at the spot as they had been distributing pamphlets for last two weeks, and thus, it can only be imagined as to how many people could gather on the day of jumma next week. It is, thus, clear that he had common intention and that he was part of the overall intent and object of the unlawful assembly,” the court said (Para 78)
The court said that Imam is student of JNU but his speech at JMI was provocative and indicates he was part of the mob.
Pertaining to Asif Iqbal Tanha, Counsel Ms Sowjhanya Shankaran submitted that no grave suspicion is made out against him and that no allegation of rioting is made against him by the witnesses and that he was not in any videos or photographs either. However, the prosecution showed Tanha’s Facebook post where he admitted he was stopped by the police and detained as well. The court observed that he continued to be part of the unlawful assembly but there is no indication that he indulge din violence or destruction of property.
Pertaining to Chanda Yadav, Counsel Ayush Shrivastava submitted that she was a mere bystander and that she had climbed the barricade out of fear of being run over by a mob of protesters. The court, after perusing the video noted that there was clear distinction between the rioters and bystanders and she was not a bystander. The court cited Lakshman Singh v. State of Bihar (2021) 9 SCC 191 to state that in case of rioting, every member of unlawful assembly is vicariously liable for the acts of the other members.
Pertaining to Safoora Zargar, Senior Counsel Ms Rebecca John stated that she was identified from a video where a person whose is covered is identified as Zargar and her CDR location was not consequential since she was MPhil student at JMI. The witnesses, who were peon and caretaker in the University claimed to have recognised Zargar as the person with the face covered as they had seen her frequently in the premises of the University.
“A person who meets or watches a person day in and day out on a regular basis cannot be said to be not in a position to have identified a person who is wearing a mask since identification can be based also on the physical appearance among several other things. Since two independent witnesses supported the prosecution case that the woman who is part of the violent mob is respondent no. 11, the case of prosecution cannot be thrown out…,” the court said (Para 92).
“Holding at this stage that the independent public witnesses have given false statements will be against the settled principles of law at the stage of charge,” the court said (Para 93)
Only 11 picked from mob of thousands
Considering this contention of the respondents (accused) that they were selectively picked from the mob, the court held,
“Merely because some persons could not be identified and have not been charge sheeted at present does not give a right of discharge to others who have been identified and connected with the offence in question. The non-arrest of several others cannot be a ground for discharge of the present accused persons. Essentially with the mob of thousands of people who were pelting stones at the police force, the making of videos and finding of witnesses can be difficult. Many of them could not have been arrested probably as they could not have been identified and if the present accused persons have their identifications and want to disclose their identity to the Delhi Police, they may do so as they have every right to do that.” (Para 101)
On framing of charges
The court held,
“A person may join unlawful assembly at any point of time when it is in progress and will be held responsible for all he must have done. A previous criminal concert is not essential to be established. In case such intent or participation is reflected from the material on record, the Court will be justified in framing charges against the accused persons.” (Para 115)
The court noted that each respondent had to be treated differently since,
“There are people who have used force and violence while participating. There are those who are consciously participating in the protest when the assembly had turned violent but did not use force. There are those who instigated by their speeches and actions and were present at the spot… Thus, each respondent has been charged according to the extent of his/her role as visible from the material on record.” (Para 116)
The court noted that the videos demonstrated that the mob had turned violent
“Though, in a democracy, there can be no question of dissent being suppressed or fundamental right of freedom of expression by peaceful means being infringed, however, at the same time, there is no place of violent collective action to register one’s anguish against ideological differences or resistance to a Government policy. The video analysis will also reveal that the acts of resistance being presented as normal by the present respondents were not peaceful resistance but violent protest which had turned into riots.” (Para 120)
Conclusion
In conclusion, the court held that while right to freedom of speech and expression cannot be denied, the court had to “decide the present case in light of constitutional and human rights of the individuals qua the offences alleged to have been committed by them and their grievance against their alleged false implication by alleged overzealous and mala fide police practices in this case”. (Para 143)
Disagreeing with the trial court, the court held
“The Court has relied on material which has been discussed in detail and does not agree with learned Trial Court that only the confessional statements which are non-admissible in law were available on record against the present respondents.” (Para 149)
The court held thus:
Respondents number 1, 2, 3, 6, 7, 8, 10 and 11 [Mohd. Qasim, Mahmood Anwar, Shahzar Raza Khan, Umair Ahmed and Mohd. Bilal Nadeem, Sharjeel Imam, Chanda Yadvav and Safoora Zargar] are charged for commission of offences punishable under Sections 143 [unlawful assembly]/147 [rioting]/149 [common object in unlawful assembly]/186 [Obstructing public servant]/353 [Assault or criminal force to deter public servant]/427 [mischief causing damage]of IPC and Section 3 of Prevention of Damage to Public Property Act [PDPP Act], and not under other sections of law mentioned in the chargesheet since there is not enough material against them.
Respondent number 4, 5 and 9 [Mohd. Abuzar, Mohd. Shoaib and Asif Iqbal Tanha] are charged for commission of offence punishable under Section 143 of IPC, and not under other sections of law mentioned in the chargesheet since there is not enough material against them (Para 150)
The complete judgement may be read here:
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