Sharjeel Imam | SabrangIndia

Delhi High Court grants statutory bail to Sharjeel Imam in alleged incendiary speech case

sabrang — Fri, 31 May 2024 12:41:05 +0000

Introduction

The Delhi High Court bench of Justices Suresh Kumar Kait and Manoj Jain on May 29 granted statutory bail to Sharjeel Imam in the case of alleged incendiary speech delivered during the anti-CAA protests. In their verdict, the bench remarked that the trial court “got swayed by the enormity of the allegations” and said that there is no justifiable reason preventing the court from granting him the relief. The High Court granted bail to Sharjeel as he has already undergone 4 years in prison as an undertrial, which is more than half of the maximum prescribed imprisonment period for the charges made against him, making him eligible for statutory bail under Section 436-A of the Code of Criminal Procedure (CrPC). Notably, while the charge of sedition (Section 124-A) carries a maximum of life imprisonment, the said provision is suspended by the Supreme Court order in the case of S.G. Vombatkere Vs. Union of India, thus making it inapplicable in the present case.

The relevant portion of Section 436-A of CrPC reads, “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties”.

Even though Sharjeel has been granted bail in this case, he will continue to remain behind the bars as he is also booked in another case for his alleged role in larger northeast Delhi violence conspiracy case. Sharjeel was first arrested in the present case on January 28, 2020 as he was booked under Sections 124A (sedition), 153A (promoting enmity), 153B (Imputations, assertions prejudicial to national integration), 505(2) (Statements promoting enmity) of the Indian Penal Code (IPC) and Section 13 (punishment for unlawful activities) of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

Pertinently, the application for statutory bail was first move d in the trial court by Sharjeel under Section 436-A of CrPC, but the Shahdara trial court judge Sameer Bajpai rejected his plea, observing that “although the applicant did not ask anybody to pick weapons and kill the people but his speeches and activities mobilised the public which disrupted the city and might be the main reason in outbreak of the riot”. The trial court said his speeches at Jamia Millia Islamia and Aligarh Muslim University can be deemed “seditious” in dictionary meaning, and the speeches were made to incite “the public in order to create a havoc in the city, capturing the minds of “a particular community” and inciting them to engage in disruptive activities.”, Indian Express reported. Consequently, the trial court rejected his bail and extended his detention citing “exceptional circumstances”.

Following the trial court order rejecting his bail plea, Sharjeel moved an appeal to the Delhi High Court under Section 21 (4) of National Investigation Agency Act, 2008, which states that “Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail”.

Analysis of the Delhi High Court verdict

As the Delhi HC granted statutory bail to Sharjeel Imam, it specifically looked at Section 436-A of the CrPC, Section 13 of UAPA, and Section 124-A of the IPC (presently suspended). The court noted that the provision on sedition (IPC Sec. 124-A) which carries a maximum punishment of life imprisonment is suspended by the Supreme Court through S.G. Vombatkere Vs. Union of India (Writ Petition(C) No.682 Of 2021), and therefore it will not apply to the present case. Excluding sedition, Section 13 of UAPA is the most stringent provision applied against Sharjeel, which carries a maximum punishment of 7 years. This basically entails that Sharjeel would be eligible for a bail as he has already served 4 years in prison, which is more than half of the maximum 7 years punishment as is prescribed under Section 13 of UAPA.

The prosecution with the aim of delaying the bail to Sharjeel argued that the maximum punishment provided in each Section for which the accused is charged can be given aggregately or one after the other. The bench strongly rejected the argument of the State and said, “…a very strange argument was raised before the learned Trial Court by State. It was contended that if conviction is recorded, the sentence likely to be awarded is to be seen in terms of the legal provision under section 31 Cr.P.C., which prescribes that when a person is convicted at one trial for two or more offences, the punishments shall run one after the other, unless the court, in its discretion, orders that the punishments shall run concurrently. Obviously, such contention did not cut any ice.”

Interpreting Section 436-A of the CrPC, the bench said that careful look at the provision suggests that under Section 436-A an accused would not be entitled to “automatic” bail and it cannot be claimed as a matter of right. The bench continued that courts may for reasons recorded in writing, decline the bail under the said proviso. However, the High Court emphasised that though the court can order further detention, “the reasons have to be rational and logical, else the very purpose of introducing the provision would stand defeated.”

The State argued that the explanation to Section 436-A of the CrPC notes that detention undergone due to delay caused by the accused should be excluded from the calculation of total period of detention, and further alleged that it was Sharjeel who delayed the proceedings by stalling the trial against the offence of sedition. Consequently, he should not be allowed the relief under Section 436-A of the CrPC, the prosecution argued.

The court rebutted such claim saying “If any accused chooses to avail legal remedy and that too in terms of specific judicial pronouncement, he cannot be blamed for causing delay in the matter.” The bench relied on S.G. Vombatkere vs. Union of India, Abdul Subhan Qureshi vs. State (NCT of Delhi), and Ajay Ajit Peter Kerkar vs. Directorate of Enforcement as it granted bail to Sharjeel Imam.

Notably, as the court gave relief to Sharjeel, it argued that trial court got swayed by the enormity of the allegations and said “we have no hesitation in holding that there was, actually speaking, nothing on record which could have disentitled the accused from seeking relief under Section 436-A Cr.P.C.”

The copy of the judgement can be found here:

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Four years behind bars, Sharjeel Imam still waits for a fair trial

sabrang — Mon, 29 Jan 2024 13:53:10 +0000

Sharjeel Imam enters his fourth year of detention. He has been charged with cases of, now removed, sedition and the UAPA, including cases for inciting enmity between religious groups, and waging war. As of today, he has not been convicted of any charge and is in prison without bail as an under trial prisoner.

At the age of 34, Sharjeel Imam, who is currently a research scholar at Delhi’s Jawaharlal Nehru University is from Kako, a village in Bihar’s Jehanabad district. Imam studied his BTech at the Indian Institutes of Technology, Bombay and went on to serve as a Teaching Assistant at the same institute, following which he worked as a programmer in Copenhagen. Imam decided to further his education and in 2013, he enrolled in a Master’s program in Modern History at JNU after which he undertook an M.Phil. Programme in Modern Indian History, and a PhD. His MPhil thesis was titled ‘Exodus before Partition: The Attack on Muslims of Bihar in 1946.’

In December, during an anti-CAA protest at Jantar Mantar, Imam delivered a speech characterising the CAA as an assault on Muslim citizens of India. Furthermore, he advocated for a Chakka Jaam, arguing it was a well-tested means of democratic protest around the world to bring the attention of the authorities to address public demands.

Later, the Delhi Police used one of Imam’s speeches promoting the Chakka Jaam as evidence to file a case against him. They have accused him of aiding the February 2020 Delhi pogrom which saw over 40 people, mostly Muslims, killed in north-east Delhi.

Charges of sedition were levelled against Sharjeel Imam following the widespread dissemination of a two-minute excerpt from his speech at Aligarh Muslim University on January 16. This snippet was broadcasted by right-wing news channels and extensively shared on social media platforms on January 24, including a segment on Arnab Goswami’s Republic World. Right-wing media outlets interpreted the clip out of context and tried to portray him as an Islamic fundamentalist, subjecting him to a media trial. While in prison, like many other prisoners, he contracted COVID-19 in 2020. To which he stated, in an interview to Ajaz Ashraf, “My fear was not that I would die without meeting my family. It was rather that I would not be able to prove that I am not a terrorist.”

According to a report by The Wire, Imam has eight cases registered against him out of which he has been given bail 5 of them. For one of the remaining cases, he has never been arrested, and the other remaining cases are of the UAPA. According to the same report, Imam’s brother, Muzammil Imam, has stated that his bail plea has been listed about 46 times in the courts in the past four years.

Court Proceedings

Five Indian states namely Assam, Uttar Pradesh, Manipur, Arunachal Pradesh, and Delhi had taken legal action against Imam. Assam Police registered an FIR citing UAPA and IPC sections. The same day, Aligarh Police in Uttar Pradesh charged Imam with sedition. Manipur Police filed an FIR for offences like waging war, sedition, and vilification. Arunachal Pradesh’s Itanagar police filed an FIR for sedition and promoting enmity and Delhi Police filed an FIR for sedition and promoting religious enmity.

In November 2021, Imam was granted bail by Allahabad High Court for his AMU speech. The court stated that his speech did not amount to calling for violence. He was granted bail by a single bench comprising Justice Saumitra Dayal Singh sections 124 A (sedition), 153 A (promoting enmity between different groups) as well as a few other sections of the IPC.

In March 2022, Delhi High Court issued notice on his bail plea, noting that sedition required call to violence, “why should he not be granted bail?”. However, the Delhi High Court set aside a trial court’s order, to discharge Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in the Jamia violence case.

In September 2022, Imam was granted bail by a Delhi court for allegedly making inflammatory speeches during anti-Citizenship Amendment Act (CAA) protests in 2019. He was granted bail under the Code of Criminal Procedure’s Section 436A. The provision details bail for a person who has gone through detention for up to one-half of the maximum sentence specified for an offence during the trial period.

In November 2023, the judge presiding over the case was discharged and it was decided that the bail plea for the case would be heard afresh.

In January, 2024, the High Court directed the Delhi police to ask why Sharjeel Imam can’t be treated equally with those granted bail. As of now, Ishrat Jahan, Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita have been granted bail in the case in 2021. The Delhi police has responded that it is for Imam to convince the court, and not up to the prosecution.

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Jamia violence case: Delhi High Court overturns trial court order discharging Sharjeel Imam, Asif Tanha, Safoora Zargar and others

Thu, 30 Mar 2023 05:02:42 +0000

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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‘Victim of Violence, Not Offender’: Sharjeel Imam submits response to Delhi HC in police’s plea against discharge in 2019 Jamia Violence Case

Thu, 16 Mar 2023 06:33:34 +0000

In response to the Delhi Police’s petition against his discharge in the 2019 Jamia violence case, Sharjeel Imam told the Delhi High Court that he was the victim of violence and not the perpetrator. Imam has also stated that he only advocated for peaceful protest rather than violence. The arguments were made in written submissions filed on Imam’s behalf in response to Delhi Police’s petition challenging his discharge, as well as those of Safoora Zargar, Asif Iqbal Tanha, and eight others in the 2019 case of Jamia violence case (FIR No. 296 of 2019).

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.

It has been contented by Sharjeel that the fact that violence occurred during the peaceful protest at Jamia, resulting in him breaking his glasses, does not imply that he participated in the said violence. Rather, it was a reflection of the fact that he was a victim of the violence and had no active role to play in how it all culminated. Imam has also stated that shouting slogans “in favor of a particular means of peaceful protest” in no way suggests his participation in the alleged violence that occurred during the protest against the Citizenship Amendment Act (CAA).

“In his speech at AMU on December 16, 2019, the Answering Respondent (Sharjeel) merely stated that he campaigned in favor of chakka jam as a means of protest which by no stretch of the imagination could be called a violent method of protest,” he said, as per LiveLaw.

Imam has also claimed that there is no single admissible piece of evidence against him demonstrating that he was a member of the unlawful assembly involved in the alleged violence or rioting. Sharjeel emphasised that he is not seen in any of the videos presented by the prosecution, nor is there any statement recorded by the investigating agency in which he is even named, let alone attributed any role in the alleged violence. He has also claimed that his call data records (CDR) clearly show that he had already left the scene of the alleged incident on the date of the incident, as reported by LiveLaw.

“That the disclosure statement in question was not recorded by the investigating agency in the present case and even otherwise the same has got no evidentiary value at all and cannot be the basis to frame charges,” he has said, as per LiveLaw.

The revision petition filed by Delhi police will be heard today by Justice Swarana Kanta Sharma. Imam is represented by Advocates Talib Mustafa, Ahmad Ibrahim and Ayesha Zaidi.

Background of the case:

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, had 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 had 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. Sharjeel Imam was produced from judicial custody at the time of the deliverance of the order and his advocate is Talib Mustafa.

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.

A deeper analysis of the arguments made by the prosecution and the defense, along with the rationale behind the decision given by the court can be read here.

Days thereafter this judgment by the Delhi court was pronounced, the police had approached the High Court challenging the discharge. While issuing notice in the petition, Justice Sharma had said that the trial court’s observations against the investigating agency will neither affect further investigation nor the trial of any accused person.

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Student leaders made scapegoats, prosecution cavalier: Court discharges 11 in 2019 Jamia violence case

Mon, 06 Feb 2023 04:39:35 +0000

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.

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)

Conclusion

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.

Protests on attack on JNU students: Mumbai police withdraws case against 36 protesters

Jamia cancels SafooraZargar’s PHD then bans her from entering JMI campus

No exception for pregnancy: Delhi police on SafooraZargar’s bail plea

Delhi HC seeks status report from police by June 23: Safoora Zargar’s Bail Plea

American Bar Association asks courts to uphold India’s moral and legal obligations and release Safoora Zargar

Delhi police granted 2 more months to file charge sheet in Delhi riots case under UAPA

The post Student leaders made scapegoats, prosecution cavalier: Court discharges 11 in 2019 Jamia violence case appeared first on SabrangIndia.

Sharjeel Imam granted bail in the 2019 Sedition Case

Sat, 01 Oct 2022 07:53:16 +0000

Image courtesy: India Today

On September 30, Sharjeel Imam, a former JNU student, was granted bail by a Delhi court in a sedition case where he is charged with making a “provocative remark” that allegedly incited violence in the Jamia Nagar neighborhood in 2019. Imam will nonetheless continue to be in detention as long as he hasn’t received bail in the other charges that are still ongoing against him.

In the FIR 242/2019 filed at the New Friends Colony Police station, Sessions Judge Anuj Agrawal granted bail to Sharjeel. Days prior, the Delhi High Court had instructed the trial court to consider Sharjeel Imam’s request for relief under Section 436-A CrPC on the grounds that he had spent 31 months in prison as of the filing of the FIR. The Saket Court had refused Imam regular bail in October 2021, stating that the “incendiary speech” he delivered had a detrimental impact upon public tranquility, peace and harmony of the society.

According to the NFC Police FIR, on December 15, 2019, police were informed of a protest being organized by students and residents of Jamia Nagar against the now Citizenship Amendment Act (CAA). According to the police report, a mob had obstructed traffic on the road and had begun vandalizing public and private property and cars with sticks, stones, and bricks. According to the prosecution, protesters were provoked by the imam’s statement on December 13 of 2019 before becoming violent.

Effectively, Imam was granted bail owing to the following three factors:

The same court had previously held that the several sections (of the IPC, Prevention of Damage to Public Property Act and Arms Act) under which Imam had been booked in this case did not really apply. Amid other observations, the court noted: “…after going through the record, I am of the prima facie view that the evidence in support of the allegations (rioters got instigated by the speech dated 13.12.2019 of applicant/accused and thereafter they indulged in the acts of rioting, mischief, attacking the police party etc), is scanty and sketchy,” as reported by LiveLaw. Thus, as per the court, Imam could only be adjudicated under two sections – 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc) and 124A (Sedition) of the IPC.
The Supreme Court, via an order dated 11 May 2022, kept 124A IPC i.e. the sedition law in abeyance. This means that only 153A IPC remained to be considered against Imam in the present case
If convicted under 153A IPC, Imam could be punished with imprisonment which may extend to three years, or with fine, or with both. Imam, however, had already been in custody for more than 31 months, having been arrested on 17 February 2020 in connection with this case. According to 436A CrPC, an under-trial shall be released on bail if he has undergone “detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence.” As reported by LiveLaw, the court noted “The applicant/accused is in custody since last more than 31 months, having been arrested on 17.02.2020 in the instant case.”

Brief background of cases against Sharjeel Imam

Sharjeel Imam was arrested by the Delhi police on January 28, 2020 from his home village in Bihar, after the police in five states, Delhi, Uttar Pradesh, Assam, Arunachal Pradesh and Manipur reportedly filed cases under sedition and terrorism in seven First Information Report (FIRs) against him. He is currently lodged in Tihar, New Delhi.

In 2021, Sharjeel Imam had filed an application for a regular bail plea in connection with FIR No. 242/2019 which has alleged that he delivered provocative speeches in 2019 which led to Delhi Riots at various places observing that the tone and tenor of the incendiary speech tend to have a debilitating effect upon public tranquillity, peace and harmony of the society.

FIR 242/2019 was registered under Section 143/147/148/149/186/353/332/333/307/308/435/427/323/341/120B/34 IPC, u/s 3/4 Prevention of Damage to Public Property Act & u/s 25/27 Arms Act.

This bail was dismissed by Additional Sessions Judge Anuj Agrawal on October 22, 2021, even though the Court had reportedly observed that the evidence against Imam was “scanty and sketchy” to take a prima facie view that his speeches incited riots. It denied him bail noting that further examination was needed to ascertain if the speech amounted to the offence of sedition under Section 124A IPC and promotion of communal disharmony under Section 153A IPC, reported LiveLaw.

Interestingly, on November 27, 2021, the Allahabad High Court granted bail to Sharjeel Imam in connection with FIR No. 50/2020 (a sedition case registered against him in Aligarh) for allegedly delivering an ‘anti-national speech’ at the Aligarh Muslim University (AMU) during Anti CAA-NRC protests.

FIR 50/2020 was registered under Sections 124A, 153A, 153B and 505(2) I.P.C

While granting him bail, the Bench of Justice Saumitra Dayal Singh noted “Neither he called anyone to bear arms nor any violence was incited as a result of the speech delivered by him.”

The same year, Imam had also filed a bail application in connection with FIR No. 22/2020 (with respect to the speeches made by him in Aligarh Muslim University and Jamia area in Delhi) before the Delhi Court. FIR 22/2020 was registered by the Delhi Police under sec. 124A, 153A, 505 of the Indian Penal Code along with sec. 13 of the Unlawful Activities (Prevention) Act (UAPA), which was added later. However, the said regular bail plea was dismissed by Additional Sessions Judge Amitabh Rawat on January 24, 2022.

On April 28, 2022, Sharjeel Imam moved the Delhi High Court challenging a Trial Court order which had dismissed the bail plea in connection with FIR No. 59/2020 (a case alleging larger conspiracy into the Delhi riots of 2020) involving charges under Indian Penal Code and UAPA. However, on May 6, a division bench comprising Justice Siddharth Mridul and Justice Rajnish Bhatnagar further adjourned hearings listing the matter to be heard on May 26. The Bench had adjourned the matter on the grounds that it would be appropriate to await the outcome of the Supreme Court regarding the challenge to the constitutional validity of the offence of ‘Sedition’ under Section 124A of the Indian Penal Code before continuing with the present appeals.

During this hearing, the Court had decided to hear another challenge made by Imam seeking bail in connection with FIR 22/2020, a case relating to the alleged inflammatory speeches made by him at the Aligarh Muslim University (AMU) and Jamia area in Delhi against the Citizen Amendment Act (CAA).

During the course of the hearing, Advocate Tanveer Ahmed Mir appearing for Sharjeel Imam, relied on an order passed by the Allahabad HC granting bail in a case concerning one of the speeches forming part of the FIR in question. Accordingly, Justice Mridul reportedly said, “If you’re saying that order passed by Allahabad HC granting you bail, if you’re pressing that, and you say it covers the present appeal, then you have to show us how and what were the allegations in the FIR?”

Today, after directing Imam to approach the lower court to seek interim bail in connection with the sedition case registered under FIR no. 22/2020, the Court has listed the pending appeals challenging the order denying Imam bail as well as framing charges against him in the matter on August 26, reportedly LiveLaw.

There are three more FIRs registered against Imam:

State	FIR No.	Offences
Assam	01/2020	121(A), 124(A), 153(A), 153(B) IPC and S.13(1), 15(a)(iii), 18 UAPA
Manipur	16(1)/2020	121, 121(A), 124(A), 120B, 153(A) IPC
Arunachal Pradesh	02/2020	124A, 153A, 153B IPC

Delhi HC asks Sharjeel Imam to approach Trial Court to seek interim bail in seditious speeches case
Speech in bad taste, not a terrorist act: Delhi HC On Umar Khalid’s Amravati Speech

The post Sharjeel Imam granted bail in the 2019 Sedition Case appeared first on SabrangIndia.

Essence of Khalid, Sharjeel’s speeches was to create sense of fear among Muslims: Prosecution opposed Umar Khalid’s bail

Wed, 03 Aug 2022 04:21:32 +0000

On August 1, the Delhi High Court heard the submission made by the Prosecution opposing the bail plea filed by Student Activist Umar Khalid in Delhi riots larger conspiracy case.

At the outset the Prosecution submitted before a special bench comprising Justices Sidharth Mridul and Rajnish Bhatnagar, that the speeches made by various accused persons in the First Information Report (FIR) had a ‘common factor’, essence of which was to create a sense of fear in the Muslim population of the country.

Special Public Prosecutor Amit Prasad appearing for Delhi Police argued that the speeches made by Dr. Umar Khalid, Sharjeel Imam and Khalid Saifi were all connected with each other at the relevant time as a part of conspiracy to commit 2020 riots, reported LiveLaw.

He reportedly argued, “All speeches have one common factor which is in the entire speech, the essence is to create a sense of fear in Muslim population. I’ll read speech of Sharjeel Imam, Khalid Saifi and Umar Khalid. When you talk about Babri Masjid or Triple Talaq, they relate to a religion. But when you talk about Kashmir, it’s not an issue of religion, it’s an issue of national integration.”

Referring to Khalid’s speech at Amravati in February 2020, he reportedly argued, “When my learned friend (Adv. Pais) said that there was nothing wrong in the speech (Umar Khalid’s), even I say there is nothing wrong. It’s a very calculated speech. It brings various points. One, Babri Masjid, two, Triple Talaq, three, Kashmir, four, Muslims are suppressed and five, CAA-NRC. Point that comes out is that your grievance is not against CAA NRC, it is against Babri Masjid and Kashmir. This is a pattern.”

Prasad further argued that there was spread of misinformation, blockade of roads at protest sites, attack on police personnel and paramilitary violence, damage to public properties and use of petrol bombs and other elements.

It was the prosecution’s case that the protest sites were created through Whatsapp groups with the help of mobilisation of various individuals. He reportedly argued, “There is contention raised that protest sites came on their own. It was not so. They were created, not organic in nature, created with mobilizing peop le from various places. Each protest site is being managed and handled by people from Jamia and DPSG.”

However, Justice Mridul pointed out that there was an overlap in the arguments made by the prosecution qua the allegations made against various accused persons in the chargesheet. He reportedly said, “The tones attributed to various appellants in chargesheet, there is definitely an overlap. In fact, we seem to be hearing Prosecution in relation to all of them. It’s not as if there has been…of course there is individual accused of various offences but there is definitely an overlap. Of course, Prosecution will have to make good by ascribing individual roles to all accused, we’re not on merits. We are saying that there is definitely an overlap in appeals before us.”

The Court left it upon the parties to decide if the appeals of the other co-accused persons are to be heard together or individually, reported LiveLaw. The matter was listed for August 2 for further hearing.

On July 28, 2022, Senior Advocate Trideep Pais appearing for Dr. Umar Khalid concluded his submissions with respect to the bail plea filed by him. He submitted that mere membership of Whatsapp groups, as alleged by the prosecution, cannot make Khalid criminally liable when nothing objectionable was attributed to him, reported LiveLaw.

To support his argument, Pais relied on the Madras High Court judgement in the case of R Rajendran v. Inspector of Police, where the Court held that a group administrator has limited power of removing a member of the group or adding other members of the groups and that once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members to the group, reported LiveLaw.

Pais denied any violence being attributed to any speech made by Khalid. He submitted that there wasn’t any recovery of any connection of his speech with violence and referred to the witness statements recorded by the prosecution, which according to him was hearsay and most importantly, recorded much after the events in proximity to his arrest.

Before the Court vacation, the same Delhi High Court bench had heard the submissions by Dr. Umar Khalid over the span of four to five days which was then concluded on last Thursday.

Previously, speaking about Khalid’s speech, Justice Mridul had orally remarked, “The speech is in bad taste, does not make it a terrorist act. We understand that extremely well. If the case of the prosecution is premised on how offensive the speech was, that by itself won’t constitute an offence. We will give them (prosecution) the opportunity…… Offensive and distasteful it was. It may tantamount to defamation, other offences, but it does not tantamount to a terrorist activity.”

Before that, the Court had stated that the speech read out by Khalid’s counsel was obnoxious, inciteful and not acceptable.

Background

Dr. Khalid was arrested by the Delhi Police in September 2020, under the Unlawful Activities (Prevention) Act (UAPA), on the charge of larger conspiracy to allegedly unleash violence to defame the Indian government during a visit by former US President Donald Trump. While Dr. Khalid was granted bail in the matter concerning Penal Code and Arms Act charges, he continues to remain in custody in connection with the Delhi Riots larger ‘conspiracy case’ concerning UAPA charges under FIR No. 59 of 2020.

While granting bail concerning the IPC & Arms Act charges, the Additional Sessions Judge Vinod Yadav recognised that probability of a lengthy trial in the said matter. The court observed, “The applicant cannot be made to incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob have to be identified and arrested in the matter.” It came down heavily on the State for providing inadequate evidence in this case, that is based on the statement provided by a prosecution witness. The court found the statement provided by the witness to be insignificant material and couldn’t comprehend how a lofty claim of conspiracy could be inferred based on it.

Importantly, the court noted that the material against Khalid was “sketchy” and that he cannot be incarcerated indefinitely on the basis of such evidence. “The applicant cannot be permitted to remain behind bars in this case on the basis of such sketchy material against him,” read the order. The judge also held that neither was Dr. Khalid present at the crime scene on the day when communal clashes broke out last year, nor was he captured in any CCTV footage/viral video. Further, the court also said that “…neither any independent witness nor any police witness has identified the applicant to be present at the scene of crime. Prima facie, the applicant appears to have been roped in the matter merely on the basis of his own disclosure statement and disclosure statement of co-accused Tahir Hussain.”

Under UAPA, Dr. Khalid has been charged under sections 13 (Punishment for unlawful activities), 16 (Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act) and 18 (Punishment for conspiracy). Under UAPA, an accused person shall not be released on bail if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. The Delhi court made out a prima facie case merely on the basis of implausible, contradictory and vague statements made by the witnesses and gave no regards whatsoever to the fact that:

(a) Dr. Khalid had not given any public calls to incite violence;

(b) There is no evidence on record that proves Dr. Khalid’s participation in funding or transporting arms nor were they recovered from him,

The post Essence of Khalid, Sharjeel’s speeches was to create sense of fear among Muslims: Prosecution opposed Umar Khalid’s bail appeared first on SabrangIndia.

Sharjeel Imam claims he was assaulted, called “terrorist” in jail

Tue, 05 Jul 2022 13:32:07 +0000

Image Courtesy: indianexpress.com

Sharjeel Imam, who is in judicial custody in connection with the February 2020 Northeast Delhi riots case, has now moved court alleging that he was assaulted by convicts at Tihar Jail and called a terrorist during a search inside his cell.

An application was moved before a link judge of Karkardooma Court in New Delhi by Sharjeel Imam’s lawyer Ibrahim to issue a show case notice to jail authorities for the “illegal assault and search committed upon the applicant” and to direct authorities to take immediate steps to protect him from any “further assault/ harassment”, reported the Indian Express.

In his application, Imam has reportedly claimed that the Assistant Superintendent along with “8-9 convicts came to the cell of the applicant in the name of carrying out a search” and during this “illegal search, the petitioner’s books and clothes were thrown away and he was assaulted and called terrorist and anti-national when he prevented them from throwing stuff.”

According to the Indian Express, Imam even “requested the AS to prevent them from doing the assault as the AS was present there during the entire episode, but to no avail… he was further assaulted by the convicts.” He further alleged that “no contraband was recovered.” Instead, the convicts suggested to “place some contraband to put him in trouble.”

The application also sought directions to jail authorities to preserve the CCTV footage of the jail from 7:15 P.M to 8.30 P.M on June 30, when the said incident took place.

Ibrahim told the Indian Express, “I moved the application to secure his safety. This is the first case of an assault that was disclosed by a riot accused. Search operations are regularly carried out inside his cell and they have never found contraband. This time, jail staff came with convicts which is illegal. Only jail staff can check the cells.”

Here is a copy of the application shared by Sharjeel’s brother Muzzammil Imam on Twitter:

On 30.06.2022 Asst. Superintendent came up with 8-9 inmates on the pretext of carrying out search of my brother Sharjeel @_imaams cell. Upon not finding anything, they called him terrorist, anti-national & assaulted him physically. The entire episode was captured on CCTV camera. pic.twitter.com/cvUoPuBdum

— Muzzammil Imam | مزمل إمام (@imammuzzammil) July 4, 2022

Brief Background

On May 26, 2022, the Delhi High Court asked Jawaharlal Nehru University (JNU) student Sharjeel Imam to approach the trial court in order to seek interim bail in connection with FIR 22/2020 pertaining to the sedition case registered against him for his allegedly provocative speeches against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC).

FIR 242/2019 was registered under Section 143/147/148/149/186/353/332/333/307/308/435/427/323/341/120B/34 IPC, u/s 3/4 Prevention of Damage to Public Property Act & u/s 25/27 Arms Act.

FIR 50/2020 was registered under Sections 124A, 153A, 153B and 505(2) I.P.C

While granting him bail, the Bench of Justice Saumitra Dayal Singh noted, “Neither he called anyone to bear arms nor any violence was incited as a result of the speech delivered by him.”

On April 28, 2022, Sharjeel Imam moved the Delhi High Court challenging a trial court order which had dismissed the bail plea in connection with FIR No. 59/2020 (a case alleging larger conspiracy into the Delhi riots of 2020) involving charges under Indian Penal Code and UAPA. However, on May 6, a division bench comprising Justice Siddharth Mridul and Justice Rajnish Bhatnagar further adjourned hearings listing the matter to be heard on May 26. The Bench had adjourned the matter on the grounds that it would be appropriate to await the outcome of the Supreme Court regarding the challenge to the constitutional validity of the offence of ‘Sedition’ under Section 124A of the Indian Penal Code before continuing with the present appeals.

On May 26, after directing Imam to approach the lower court to seek interim bail in connection with the sedition case registered under FIR no. 22/2020, the Court listed the pending appeals challenging the order denying Imam bail as well as framing charges against him in the matter on August 26, reported LiveLaw.

There are three more FIRs registered against Imam:

State	FIR No.	Offences
Assam	01/2020	121(A), 124(A), 153(A), 153(B) IPC and S.13(1), 15(a)(iii), 18 UAPA
Manipur	16(1)/2020	121, 121(A), 124(A), 120B, 153(A) IPC
Arunachal Pradesh	02/2020	124A, 153A, 153B IPC

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Delhi HC asks Sharjeel Imam to approach Trial Court to seek interim bail in seditious speeches case

Thu, 26 May 2022 09:56:13 +0000

Image Courtesy: indianexpress.com

On May 26, 2022, the Delhi High Court asked Jawaharlal Nehru University (JNU) student Sharjeel Imam to approach the Trial Court in order to seek interim bail in connection with FIR 22/2020 pertaining to the sedition case registered against him for his allegedly provocative speeches against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC).

A bench comprising Justices Mukta Gupta and Mini Pushkarna granted him the liberty to seek bail in view of the recent Supreme Court order which directed to keep in abeyance, the sedition law (IPC Section 124-A) until the Union Government reconsiders the provision.

However, the reason why the bench disposed of the interim bail application was due to the preliminary objection raised by Special Public Prosecutor Amit Prasad with respect to the maintainability of the interim bail application before the High Court. Prasad reportedly submitted that according to a 2014 Supreme Court ruling, the bail application has to be moved in the first instance before the Special Court and if aggrieved, an appeal would thereafter lie before the High Court.

Advocate Tanveer Ahmed Mir had argued that the allegations in the appeal relates to the offence of sedition essentially and thus his case would be covered by the Supreme Court order, reported LiveLaw.

Brief background of cases against Sharjeel Imam

FIR 242/2019 was registered under Section 143/147/148/149/186/353/332/333/307/308/435/427/323/341/120B/34 IPC, u/s 3/4 Prevention of Damage to Public Property Act & u/s 25/27 Arms Act.

FIR 50/2020 was registered under Sections 124A, 153A, 153B and 505(2) I.P.C

While granting him bail, the Bench of Justice Saumitra Dayal Singh noted “Neither he called anyone to bear arms nor any violence was incited as a result of the speech delivered by him.”

There are three more FIRs registered against Imam:

State	FIR No.	Offences
Assam	01/2020	121(A), 124(A), 153(A), 153(B) IPC and S.13(1), 15(a)(iii), 18 UAPA
Manipur	16(1)/2020	121, 121(A), 124(A), 120B, 153(A) IPC
Arunachal Pradesh	02/2020	124A, 153A, 153B IPC

The post Delhi HC asks Sharjeel Imam to approach Trial Court to seek interim bail in seditious speeches case appeared first on SabrangIndia.

Delhi HC adjourns hearings in bail pleas of Umar Khalid and Sharjeel Imam

Tue, 10 May 2022 04:20:59 +0000

Political dissenter Dr. Umar Khalid and Sharjeel Imam will have to stay behind bars a bit longer as the Delhi High Court, on May 6, further adjourned hearings in both their bail pleas. A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar have now listed the matter to be heard on May 19 for Umar Khalid and May 26 for Sharjeel Imam.

Both, Dr. Khalid and Imam, have been implicated in the larger conspiracy behind the North East Delhi violence of February 2020 and had been previously denied bail by the trial court.

During the last hearing, the Bench had adjourned the matter on the grounds that it would be appropriate to await the outcome of the Supreme Court regarding the challenge to the constitutional validity of the offence of ‘Sedition’ under Section 124A of the Indian Penal Code before continuing with the present appeals.

It is during this hearing that Sharjeel Imam’s lawyer, Advocate Tanveer Ahmed Mir, moved a fresh appeal challenging the Trial Court order denying him bail in the Unlawful Activities (Prevention) Act (UAPA) case. Since Imam is the purported co-conspirator according to the prosecution’s allegations, the Court decided to hear both the appeals together. The Court also decided to hear another challenge made by Imam seeking bail in a case relating to the alleged inflammatory speeches made by him at the Aligarh Muslim University (AMU) and Jamia area in Delhi against the Citizen Amendment Act (CAA) in connection with FIR 22/2020.

During the course of today’s hearing, Advocate Tanveer Ahmed Mir appearing for Sharjeel Imam, relied on an order passed by the Allahabad HC granting bail in a case concerning one of the speeches forming part of the FIR in question. Accordingly, Justice Mridul reportedly said, “If you’re saying that order passed by Allahabad HC granting you bail, if you’re pressing that, and you say it covers the present appeal, then you have to show us how and what were the allegations in the FIR?”

According to LiveLaw, while adjourning the matter, the Court ordered, “In the meantime, parties are at liberty to place on record all docs as may be relevant for adjudication of the appeal within one week from today with advance copy to other side.”

Courtroom exchange earlier in the case of Umar Khalid

(a) Arguments with respect to criticism of the government

Earlier last month, while hearing the appeal filed by Umar Khalid against the Trial Court’s order denying him bail, Justice Rajnish Bhatnagar had asked Dr. Khalid’s lawyer, Senior Advocate Trideep Pais, if it was appropriate to use the word “jumla” against the Prime Minister of India. Advocate Pais had reportedly submitted that criticism of the government is not a crime. Justice Bhatnagar further inquired about the word ‘changa’ used in context of the Prime Minister, to which Pais reportedly responded, “It is satire. Sab changa si was probably used by PM in a speech.”

According to LiveLaw, Advocate Pais further submitted, “Criticism of the government cannot become a crime. 583 days in prison with UAPA charges was not envisaged for a person who speaks against the government. We cannot become so intolerant. At this rate, people will not be able to speak.” However, according to Justice Bhatnagar, a line needs to be drawn for criticism. He reportedly remarked, “There has to be a Lakshman Rekha.”

Justice Mridual further enquired about the use of words ‘inquilab’ and ‘krantikari’. As per LiveLaw he stated, “He is invited to Amravati to deliver which he himself calls a krantikari and inquilabi speech. Your argument regarding free speech, nobody can have a question. Question is, did his speech and subsequent actions lead to the riots that happened? The live link with speech and other material gathered whether it led to incitement of violence? Nobody has qualms about free speech but what is the consequence of your employing these expressions, offensive as they evidently are. Did they incite the populous in Delhi to come out to streets? If they did even prima facie, are you guilty of UAPA sec. 13? That is the question before us.”

Pais reportedly submitted, “The speech in itself didn’t call to violence. No witness to violence of Delhi have said that I was incited by this. Only two witnesses cited to have heard this speech, they say they weren’t incited by the speech.”

(b) Arguments with respect to the invocation of UAPA

Claiming that invoking offences under UAPA in the FIR was a calculated move, Pais brought to the Court’s attention that initially only bailable offences were added to the FIR and non-bailable offences including UAPA was only added a later stage. As per LiveLaw, Pais argued, “This is a mala fide invocation (of UAPA) in order to just ensure that people don’t get bail. FIR isn’t worth the paper it’s written on.”

Advocate Pais further based his argument on the Indian jurisprudence citing the Kedarnath Singh case law arguing that the speech in question has no incitement as contemplated by the said judgement and the speech did not incite violence.

“The crowd was sitting, there was no call for violence. However, much we disagree with what the appellant said, it was by no means a speech that could come near sec. 124A of IPC, leave alone the offences of terror,” Pais said, as reported by LiveLaw.

(c) Arguments about contradictory witness statement relied upon by the Trial Court

Advocate Pais brought to light the contradictory statements made by the witnesses including the protected witnesses upon which forms an essential part of the reason for denying bail in the Trial Court’s order. He reportedly argued, “It flies in the face of each other. There are several witnesses like that. I will adhere to Watali and other judgments but i will show that on the face of it, chapter 4 offences are not made.”

As per LiveLaw Pais further submitted, “The offence of 124A or there being any reaction of speech in Delhi is not only unfounded, but unlikely and more than remote. The special court also didn’t find it. At best, beta statement where he says intention to do chakka jam, chakka jam in itself cannot be terror by any stretch of imagination.”

According to Justice Mridul the acts of co-conspirators can be attributable to Khalid as part of the said conspiracy. LiveLaw quoted him as saying, “This is the reason why case of Prosecution is that it was conspiracy between large no of conspirators. By himself he may not be able to give injaam to conspiracy, for that there have to be co-conspirators.”

Pais responded saying that the only common intention that comes across amongst the alleged co-conspirators was to conduct peaceful opposing CAA and nothing else. He said, “It can’t be that someone wakes up in November and spins a yarn about what my speech was about and half of it is wrong and can be termed as incitement. There has to be nexus between speech and violence in Delhi.”

As reported by LiveLaw, in opposition to the appeal, the Prosecution had earlier told the Court that the “narratives” sought to be created by Dr. Khalid cannot be looked into as his defence at the stage of bail. It was the Prosecution’s case that Dr. Khalid’s role should not be viewed in isolation as it is the case of conspiracy. The prosecution further relied upon the trial court’s order that dismissed bail pleas of co-accused Khalid Saifi and Shifa-ur-Rehman which demonstrates the extent of the alleged conspiracy and the role played by each conspirator.

Trial Court’s Order

Under UAPA, Dr. Khalid has been charged under sections 13 (Punishment for unlawful activities), 16 (Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act) and 18 (Punishment for conspiracy). Under UAPA, an accused person shall not be released on bail if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. The Delhi court made out a prima facie case merely on the basis of implausible, contradictory and vague statements made by the witnesses and gave no regards whatsoever to the fact that:

(a) Dr. Khalid had not given any public calls to incite violence;

(b) there is no evidence on record that proves Dr. Khalid’s participation in funding or transporting arms nor were they recovered from him,

Grounds for denying bail as stated by the Court

Dr.Umar Khalid finds a recurring “mention” from the beginning of the conspiracy till the riots.
He is member of the Whatsapp groups of Muslim students of Jawaharlal Nehru University (JNU).
He participated in various meetingsin December 2019 (on December 7, 8, 13 and 26) and also in January 2020 (January 8, 23-24) as well as on February 2, 2020.
He is member of the DPSG Whatsappgroup and attended meeting at Indian Social Institute (ISI) on December 26, 2019
He gave reference to Mr. Donald Trump President of USA in his Amravati Speech on February 17, 2020
He was mentioned in the flurry of calls that happened post riots.
He was instrumental in creation of the Jamia Coordination Committee (JCC).
Statements of numerous witnesses including protected public witnesses highlighting the incriminating material against the accused Umar Khalid.

Since the membership of certain Whatsapp groups and participation in various meetings was not enough, the Court only relied on vague, contradictory and implausible witness statements without undertaking any further analysis despite acknowledging the fact that there are some inconsistencies in the statements of some protected witness.

Taking into consideration the proceedings of Khalid’s bail hearings and the remarks made by the Court in this context, Gautam Bhatia has rightly stated in his article titled ‘Unfreedom of Speech’ for Indian Express: “An enthusiastic political speech, a fiery political speech, a political speech that takes aim at opponents through satire, parody, or even by generating a sense of outrage- these may offend people’s sensibilities and ideas of civility, taste, and good behaviour- but these are not reasons to deprive an individual of their freedom. As the guardian of civil rights, the Court bears the burden of ensuring that the Lakshman Rekha does not turn into a weapon to permanently silence democratic dissent”.

Dr. Umar Khalid: A human rights defender, failed by the judiciary

Sketchy material against Umar Khalid, Delhi court grants bail

Protest was secular, chargesheet is communal: Dr. Umar Khalid’s counsel

Umar Khalid bail hearing: Counsel points out “cooked up” witnesses

Chargesheet against me looks like a film script: Umar Khalid to court

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