On February 4, student leaders Safoora Zargar, Sharjeel Imam, Asif Iqbal Tanha, and eight others, were discharged in the crucial 2019 Jamia violence case (FIR No. 296 of 2019). Additional sessions judge, Saket Court, Arul Verma, while discharging these accused, has held that while the Delhi police were unable to apprehend the “actual criminals” they “definitely succeeded in using them (accused) as scapegoats”. The additional sessions judge also admonished the prosecution for presenting “ill-conceived charge sheets,” noting that the police had “arbitrarily selected” some protesters to charge sheet and others (to name) as police witnesses. The other “accused” who were also discharged in this case are Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Mohd Abuzar, Mohd Shoaib, Umair Ahmad, Bilal Nadeem, and Chanda Yadav. Sharjeel Imam was produced from judicial custody at the time of the deliverance of the order and his advocate is Talib Mustafa.
The case going back to 2019 was heard for over a year: while the prosecution reportedly attempted endless delays, by filing multiple charge sheets, the court compelled them to argue on framing of charge. After these arguments were made and responded to, this order in the discharge application
The prosecutor in this case is Madhukar Pandey. Advocate Ritesh Dhar Dubey along with Rohsin Iqbal appeared for Safoora Zargar and counsel Ms Sowjhanya Shankar for Asif Iqbal Tanha while Ayush Shrivastava appeared for Chanda Yadav and Shoaib Khan.
This case is one of many cases against some of these accused but is specifically connected to the incidents of violence at Jamia Milia Islamia University in December, 2019. The FIR alleged offences of “rioting and unlawful assembly” under sections 143, 147, 148, 149, 186, 353, 332, 333, 308, 427, 435, 323, 341, 120B and 34 of the Indian Penal Code (IPC) were invoked in the case.
The police had first filed a charge sheet against Mohd Ilyas on April 21, 2020. A second supplementary chargesheet was then filed against 11 other accused persons, who have been also discharged in the matter. A third supplementary chargesheet was also filed recently on February 1, 2023, while the arguments on the charges were being heard.
The Prosecution case
The prosecution claimed that on December 12, 2019, information was received that students from Jamia Milia Islamia University had issued a call to gather at Gate No.7 on December 13, 2019 and march towards Parliament House. It was alleged that at 10 a.m., the whole South and South-East District police force was mobilised and deployed in the vicinity of the Jamia Milia Islamia University.
At around 2 p.m., a crowd of 700 to 800 people, mostly university students and Jamia Nagar residents, began marching towards the barricades near the Y point of Sukhdev Vihar states the prosecution. The prosecution also claimed that the protesters were ordered to stop and not march towards Parliament as prohibitory orders under Section 144 of the Criminal Procedure Code (CrPC) had been issued, and that Parliament Session had been adjourned sine die.
Protesters, according to the prosecution, were raising slogans against the recently passed Citizenship Amendment Act (December 2019) as well as the Government of India. At gate No. 1, some protestors “forcefully” crossed the first line of police officers guarding the barricades. Further, the prosecution stated that during that particular gathering, some leaders from various political parties, including the Aam Aadmi Party and the Congress, began addressing the crowd and pushing at the barricades.
The crowd was given directives and warnings via loud speakers warning them against marching to Parliament since section 144 was in operation. However, despite this, the rally turned violent, with protestors “smashing through the second line of barriers at Holy Family Road Y Point, Sukhdev Vihar.”
The protesters were allegedly warned again, says the prosecution but instead of retreating, they became more hostile, eventually throwing stones at the police. Mild force and gas shells were used to disperse the gathering after repeated warnings. Following that, the crowd entered the university area and continued to throw stones at the police party. It was also claimed by the prosecution that in order to prevent additional damage to public property and life, a request for outside force was made, and reserve force was dispatched to the scene. After an alleged confrontation of almost 2 hours, the police were able to subdue the aggressive mob. (Paras 2-3 of the judgement)
Arguments by the Prosecution
Special public prosecutor Madhukar Pandey was the counsel for the state. According to his submissions, the accused in this case had been implicated under Section 141 IPC read with Section 149 of IPC. Pandey contended that in the whole of New Delhi District, prohibitory orders under section 144 CrPC were invoked. That was the reason the police of Jamia Nagar had put barricades at Gate no. 3 to prohibit the crowd from proceeding towards New Delhi t. It was further submitted that there were even announcements from loudspeakers asking the crowd not to proceed further. However acting in defiance of both, the accused resisted efforts to maintain law and order and therefore their actions attracted section 141(2) of the IPC.
The prosecutor also submitted that since the crowd crossed the barricades and broke the signposts they are also liable to be punished under Prevention of Damage to Public Property Act (PDPP). He had further submitted that stone pelting had ensued whereby 15 police officers sustained injuries, and hence, Section 308 IPC had also been invoked.
Thus, the prosecution argued that the accused should be held prima facie guilty under Section 141 of the IPC as the police personnel, at the barricades, were legally bound to forbid the crowd from proceeding beyond the barricades and it has been established beyond doubt that the assembly was an unlawful assembly as defined under Section 141 of the IPC. To substantiate the claims made by the state, the prosecution placed reliance on Masalti v State of Uttar Pradesh 1(1964) 8 SCR 133. On the basis of this judgement, the prosecutor further submitted that it was not necessary to link the accused to any overt act as this precedent interpretation only required to establish that the accused persons were part of a larger unlawful assembly. Further, he submitted that the manner and the demeanour of the entire mob required to be interfered with as their object (violence) was clear. Heavy reliance was also placed on the mobile locations of the accused. (Paras 6-13)
Arguments by the accused
Counsel for the accused vehemently refuted the allegations put forth by the prosecution. They submitted that the present case is a fit case where the accused ought to be discharged. On behalf of each of the accused, written submissions were filed and arguments were led, the gist of which were that while the accused could be said to have been part of the gathering at the location stated by the prosecution. there was no evidence to establish, nor even any eye-witnesses who could associate them with the violence that took place.
On behalf of the accused Kashmiri student leader, Safoora Zargar, it was submitted that it is unclear from the charge sheet as to when and how the gathering of students turned into an unlawful assembly. It was submitted that Ms Zargar was not identified in any of the videos, and only a lady wearing a scarf covering her face was kept being identified as Safoora Zargar. It was submitted that the presence of accused in her call data records (CDRs) in the vicinity is she is a resident of Ghaffar Manzil, Jamia Nagar, which is adjacent to Jamia University. (Para 14- xi)
On behalf of other accused Sharjeel Imam, it was submitted that the speech delivered by him on December 13, 2019 was admittedly delivered at around 7:30 pm, much after the alleged rioting. It was also submitted that as per evidence in CDR, he was at the place of occurrence from 1:57 pm to 3:51 pm. However, the case of the prosecution was that the protestors assembled at the place of occurrence only around 3:30 PM. Thus, it was demonstrated that since records showed that the accused left the spot immediately after, in 20 minutes, he was not part of the assembly that turned unlawful later on. (Para 14- v)
Arguments on behalf of accused Asif Iqbal Tanha, were that, as a student of the Jamia Milia University, his presence there is but natural. Apart from his mere presence and his detention at the police station at Badarpur, there is not even an iota of direct evidence viz. photos or videos or testimony of eye witnesses that would establish the complicity of the accused in the commission of the offences made out. (Para 14-iv)
Rationale behind the Decision of the Court
I. Filing of Several Charge Sheets: The Delhi court noted that the prosecution filed first, one charge sheet and three supplementary charge sheets, and that third supplementary charge sheet was filed after considerable arguments on charge were heard, and a day before the conclusion of final arguments in regards to the aspect of charge. The court also noted that no leave of the Court was taken for filing of the same.
II. In the present case, the court held that the second charge-sheet was submitted only on re-consideration of evidence already collected within the earlier charge-sheet. In contrast to this, the court observed that the third supplementary chargesheet reveals that the very same photographs have been filed as evidence, which are already a part of the record. Statements of those witnesses have been re-recorded, whose statements were already recorded in the previous chargesheet.
In short, the court held that the investigative agency has not adduced fresh evidence, rather has sought to present the same old facts in the garb of ‘further investigation’ by filing supplementary charge sheet. The court has commented on this mal practice by the Delhi police in filing not one, but three supplementary charge sheets, with really nothing new to offer. (Para 18-24)
II. Mere presence at a protest site is insufficient to make protesters “accused”:
The court observed that mere presence of persons at a protest site without any evidence of overt acts of violence cannot lead to implication as accused in such a case. The judge also held that the prosecution has ex facie been launched in a “perfunctory and cavalier fashion” against all accused. Further, it held that to allow such persons to undergo the rigmarole of long drawn trial, does not augur well for the due process and the criminal justice system of our country. The court held that in the present case, the memo of evidence filed by the prosecution elucidates the role played by each of the 12 accused while the written submissions filed by all the accused persons allude to the fact that although they were present at the spot, but they were not part of the unlawful assembly.
No overt act or participation in the commission of offences has been attributed to them. The prosecution tried to establish that the witnesses had identified the accused persons on the basis of some photographs. However, no test identification parade was carried out during investigation until filing of the third supplementary chargesheet and that the photographs and videos only demonstrate that the accused persons were standing behind the barricades. There are no eye witnesses either who could substantiate the version of the police that the accused persons were in anyway involved in the commission of the offences. Thus, mere presence of the accused at the spot sans any overt acts, cannot inculpate them, the court concluded. (Para 25-28)
III. No Section 144 CrPc in force at Protest Site: The court observed that it was interesting that though some police witnesses averred in their statements that Section 144 CrPC was in force at that time, no such notification has been placed on record until very recently. During arguments, it was urged on behalf of the state that Section 144 CrPC was in place near Parliament. However, there was no evidence on record to substantiate the same at the time of filing one chargesheet and two supplementary chargesheets. It was only when the third supplementary chargesheet was filed, that the order under section 144, CrPC was produced which only showed that prohibitory orders were in force near the Parliament. Thus, the court held, the fact of the matter is that there was no prohibitory order under section 144 CrPC in force in the area where protests took place. (Para 30-33)
IV. Lack of shared common object among the accused: The court held that there is nothing on record to how, even prima facie, that suggests that the accused were part of some riotous mob. None of the accused herein were seen as brandishing any weapon or throwing any stones etc. Thus, the court prima facie held that there is no evidence qua the accused establishing that they resisted the execution of any law.
The court further observed that the charge sheet fails to elaborate what unlawful common object has been attributed to the accused neither is there any evidence to establish common object or motive among them or with the crowd in general.
With respect to the Masatli judgement, the court delved into the scientific evidence that the state collected, which was the CDR locations. The court observed that the other incriminating evidence put forth by the state was the fact that some of the accused were detained on the spot. Barring the above, there were no eye witnesses who saw the accused persons perpetrate any act of violence or instigation as well as no statement by any of the injured policemen or public witnesses attributing any overt role to the accused persons. The court also held that the accused were sought to be made vicariously liable for the acts of a/the mob. Therefore, the court held that the present case will not be squarely covered by Masalti in as much as all the accused are sought to be made vicariously liable, as no overt act is attributable to them. (Paras 34-40)
When it came to the question of whether the accused persons in this case were even prima facie complicit in taking part in that mayhem, the court’s answer to the said question was an unequivocal ‘no’. Marshalling the facts as brought forth from a perusal of the charge sheet and three supplementary charge sheets, the Court arrived at the conclusion that the police were unable to apprehend the actual perpetrators behind commission of the offence, but surely managed to rope the persons herein as scapegoats. (Para 44)
The court stated unequivocally that liberty of protesting citizens should not have been lightly interfered with and that dissent is nothing but an “extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19” subject to the restrictions contained therein. It is therefore a right which we are sworn to uphold, the judge said. (Para 45)
The court also said that in the present case, the investigative agencies should have incorporated the use of technology, or have gathered credible intelligence, adding that only then could it have or should it have embarked on “galvanizing the judicial system qua the accused persons.” “Else, it should have abstained from filing such an ill-conceived charge sheets qua persons whose role was confined only to being a part of a protest,” the court said. (Para 47)
The court, thus, discharged Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar, Mohd. Abuzar, Umair Ahmed, Mohd. Shoaib, Mahmood Anwar, Mohd. Qasim, Mohd. Bilal Nadeem, Shahza Raza Khan and Chanda Yadav. However, it has framed charges against Mohd. Ilyas in this case.
Sharjeel Imam still remains in custody in other FIRs registered against him concerning 2020 North-East Delhi riots. Imam, Tanha and Safoora Zargar are also still accused in the Delhi Special Cell’s case alleging larger conspiracy behind the Northeast Delhi riots of 2020. The latter two are out on bail.
The entire order can be read here.
Brief background of the continuing fight of Human Rights Defender Safoora Zargar
In the year 2020, Safoora was jailed under the Unlawful Activities (Prevention) Act from April 10 to June 24, 2020 in the alleged conspiracy case of Delhi riots 2020, for making provocative speeches on February 23, 2020. A scholar in the sociology department of the prestigious Jamia Millia Islamia university, Safoora was arrested by the special cell of the Delhi police. She was then in the second trimester of her first pregnancy, and has been lodged behind prison bars for well over a month, in the midst of the Covid-19 pandemic.
The Delhi High Court, in June 2020, granted bail to Safoora Zargar, a Jamia Milia Islamia scholar. She had been denied bail by the Sessions Court early that month and she had appealed against this order before Delhi High Court. She was under arrest since April 10, on the allegation that she delivered ‘inflammatory speeches’ on February 23 at Chand Bagh, which led to violence and rioting in North East Delhi.
Safoora’s arrest had even became a subject of one of American Bar Association’s reports in which the American Bar Association asked courts to uphold India’s moral and legal obligations and release Safoora Zargar and deemed her detention to be in violation of international human rights standards.