Calling the protest against the controversial Citizenship (Amendment) Act, 2019 “a violent collective action”, the Delhi High Court has reinstated charges against 11 persons. The trial court’s remarks chastising the Delhi Police have also been expunged.
—
JUSTICE Swarna Kanta Sharma sets the tone and hints at the conclusions to come in the very first line of her judgment when she writes: “The present case before this court raises questions which go to the root of the concepts of Indian criminal jurisprudence: the law that restrains the society from violent protest and whether it is consistent with the Indian Constitution…”
She continues, “[T]he… Constitution … ensures the right to free speech and expression, which includes the right to peaceful protest and the right of law enforcing agency to prosecute individuals who indulge in violent protest.”
The high court, as it emerges from a perusal of the judgment, appears to have taken the chargesheets filed in the case of violence in the Jamia Nagar area of Delhi in 2019 at face value, while taking no notice of the trial court’s reasoned order last month which had followed in spirit the Supreme Court’s judgment in P. Vijayan versus State of Kerala (2010).
In P. Vijayan, the Supreme Court had held that a trial court judge “cannot act as a mouthpiece of the prosecution” while exercising their powers under Section 227 (discharge upon insufficient grounds for proceedings) of the Code of Criminal Procedure (CrPC).
It was in light of this observation that Saket Court Additional Sessions judge Arul Varma had on February 4 found that he was duty-bound to lean towards an interpretation which protects the rights of the accused, given the humongous power disparity between them and the State machinery.
Before reinstating criminal charges against eight of the eleven accused relating inter alia to being a member of an unlawful assembly, rioting and assaulting a public servant, the following conclusions were drawn by Justice Sharma of the Delhi High Court.
‘Prima facie case of unlawful assembly and rioting’
The high court notes that the video clips placed before it reveal that “an uncontrollable mob allegedly of students who had turned violent”, among which were some of the accused, was “pelting stones continuously … pushing and pulling barricades, climbing barricades … [and] forcibly trying to go beyond the barricades which had been put up by the police to enforce rule of law.”
Had the police not taken timely action, the high court observes, public property would have been put on fire and “rioters” allowed to flout orders under Section 144 (power to issue order in urgent cases of nuisance or apprehended danger) of the CrPC. In that case, “the State would have been accused of dysfunctional and ineffective government machinery who could not control the eruption of violent collective action.”
“The videos will prima facie reveal that the level of opposition which was encountered by the law enforcing agency was probably not expected by them,” the judgment notes at one point.
Concluding that the said gathering was “not peaceful”, the high court rejects the contention of the accused that they were “mere bystanders”.
It is not essential that each and every member of the unlawful assembly must commit an offence in furtherance of the common object of assembly, and “mere knowledge of the likelihood of commission” of such an offence is sufficient, the court says, citing the Supreme Court’s judgment in Mahadev Sharma versus State of Bihar (1965) and confirming the principle of vicarious liability in such situations.
On the argument that certain individuals were picked and chosen out of an assembly of thousands, the court states that “the chargesheet clearly mentions” that they have been identified by the witnesses who were present at the spot and the rest could not be identified.
“Merely because some persons could not be identified and have not been chargesheeted at present does not give a right of discharge to others who have been identified and connected with the offence in question,” the judgment reads.
On this point, the trial court, while admitting that there were scores of protestors at the site and some of them did create an environment of disruption and havoc, had held that the police had failed to apprehend the actual perpetrators behind commission of the offence, “but managed to rope the persons herein as scapegoats”.
The high court, on this very point, also admits, “Essentially, with a mob of thousands of people who were pelting stones at the police force, the making of videos and finding of witnesses can be difficult,” but then holds that the lacunae in investigation may only be pointed out at the stage of trial, and not while adjudicating on whether charges are made out against an accused person or not.
It is also not open to the trial court to question the prosecution at such a stage regarding the veracity of the statements of public or police witnesses, the high court says. Testimonies of prosecution witnesses can only be scrutinised at the stage of trial through cross-examinations, and not at any stage before it, the court adds.
The judgment says that the contention that the statements of all police witnesses recorded under Section 161 (examination of witnesses by police) are similar in their content cannot be held against the prosecution, since “[t]hey were part of the same police team who were receiving the same instructions and were doing the same duty as each other”.
The court confirms the police’s apprehension that the law and order situation in Delhi would have been endangered had the “violent mob” been allowed to march on the streets of Delhi to the Parliament, where an order under Section 144 of the CrPC was in force.
Later on, the judgment observes that in the age of the internet and social media, when “provocative actions” are done and violent acts committed, there is a tendency for news of the actions to “spread within seconds, threatening the law and order situation”.
The court has also perused the statements obtained from police personnel present at the incident and contained in the multiple chargesheets filed by the prosecution, noting their claim that they would be able to identify the protestors who injured the police personnel, if the accused were produced before them.
According to the judgment, police witness head constable Nemi Chand has stated that a lot of the anti-riot equipment sent to the spot was broken, including 25 barricades and all the ropes, which were burnt by the rioters.
‘Violent collective action’
“[T]he crisis at the spot emerged when the protesters turned violent and insisted on violating the law and marching to curfew bound area…”, the judgment notes.
The eruption of “violent collective action” is visible in the video clips placed before the court, and reveals that it was triggered by feelings of disapproval against a policy of the government, namely the Citizenship (Amendment) Act, 2019. However, peaceful protesting is “unfortunately not visible in any of the videos” produced either by the prosecution or the accused, the judgment laments.
In support of the above description of the protestors, the court notes that the police was targeted by pelting stones and the police could be seen repeatedly trying to reason with the protestors by announcing that order under Section 144 of the CrPC had been imposed in the area, as well as displaying a placard with that information. Yet, the protestors insisted on marching towards the Parliament, in the process breaking barricades and putting public property on fire.
The effect, in the court’s opinion, was a threat to the organised life of the citizens which the State is bound to protect.
“[T]here is no place for violent collective action to register one’s anguish against ideological differences or resistance to a government policy,” the court warns.
“Emergency powers” had to be deployed by the State to tackle the “immediate, urgent crisis” visible in the video footage placed before the court, to “save the lives” of not only police personnel but also other people present on the spot, the court says.
But as a rule, peaceful assemblies have to be facilitated without restrictions, the court recognises. Prior restrictions may be placed in certain circumstances, but not on “mere fear, suspicion or presumption not based on actual reality”.
The State is duty-bound to ensure that while some exercise their right to freedom of expression, the fundamental right to life of others is not infringed, the judgment holds.
The argument that the protest was peaceful and participation in it would not be liable to be covered under Section 141 (unlawful assembly) of the Indian Penal Code IPC is a claim belied by the video clips and statements of the witnesses, as per the judgment.
Trial court’s remarks expunged
The State had especially taken exception to the observations made by judge Varma against the Delhi police and the prosecution in his order discharging eleven of the twelve accused.
The high court, reasoning that such observations should not have been made, expunges them.
The counsel for the accused submitted during the course of the present appeal before the high court that though the observations were made by the trial court only after taking note of the conduct of the police and the prosecution, they had no objection if the said remarks are expunged from the record.
Tracing the precedents with regard to deletion of remarks passed by a court against police officers and investigating agencies, the high court cites the Supreme Court’s judgment in State of West Bengal versus Mir Mohammad Omar & Ors. (2000), in which the Supreme Court had directed courts to ordinarily desist from castigating an investigation even while ordering acquittal.
“The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers,” the Supreme Court had observed in the above case.
The remarks made by the trial court “should have been avoided at this stage”, the high court says, taking into consideration the various precedents in this regard and the Delhi High Court Rules for ‘Practice in the Trial of Criminal Cases’, a provision of which states, “It is undesirable for courts to make remarks censuring the action of police officers unless such remarks are strictly relevant to the case.”
It would not have been clear to the trial court at the pre-trial stage whether the present case was one of peaceful dissent being suppressed by the State or the State was trying to curb the menace of violence, the high court avers, expunging certain remarks from the trial court’s order.
The following remarks made by the trial court have been expunged:
- “Marshalling the facts as brought forth from a perusal of the chargesheet and three supplementary chargesheets, this court cannot but arrive 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.” (Paragraph 44 of the trial court’s order)
- “The prosecution has ex facie been launched in a perfunctory and cavalier fashion against the above mentioned (sic) persons, except qua Mohd Ilyas@Allen. To allow the persons chargesheeted to undergo the rigmarole of a long-drawn trial, does not augur well for the criminal justice system of our country.” (Para 45)
- “Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest. Liberty of protesting citizens should not have been lightly interfered with.” (Para 45)
- “In the present case, the investigative agencies should have incorporated the use of technology, or have gathered credible intelligence, and only then should have embarked on galvanising the judicial system qua the accused herein. Else, they should have abstained from filing such ill-conceived chargesheets qua persons whose role was confined only to being a part of a protest.” (Para 47)
- “Needless to say, the investigative agency is not precluded from conducting further investigation in a fair manner, with the leave of the court, in order to bring to book, the actual perpetrators, with the adjuration not to blur lines between dissenters and rioters, and to desist from henceforth arraigning innocent protesters.” (Para 48)
Charges reinstated
The decision of the court has to guarantee procedural protection to the respondents to ensure their fundamental constitutional right of free expression and ensure that they are not put to trial for no offences, Justice Sharma notes.
However, in the present case, “the court has to recognise that adequate warning was given to the protesters from turning violent and that their assembly in view of the violence had been declared unlawful,” adding that it was a conscious choice of each person to remain part of the “violent mob”.
“[A]t the stage of the charge, the order cannot be based on one-sided appraisal of the material of the competing interest”, but it is not open for a trial court at that stage to question the veracity of statements or to hold the statements of witnesses examined by the prosecution as false or inadmissible, in the high court’s words.
The high court goes on to reinstate charges against eight of the eleven discharged under Sections 143 (punishment for membership of unlawful assembly), 147 (punishment for rioting), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object), 186 (obstructing public servant in discharge of public functions), 353 (assault or criminal force to deter public servant from discharge of his duty) and 427 (mischief causing damage to the amount of fifty rupees) of the IPC, and Section 3 (mischief causing damage to public property) of the Prevention Of Damage To Public Property Act, 1984.
The court also reinstates charges against the other three who were discharged under Section 143 of the IPC.
The charges against the twelfth accused, Mohd. Ilyas, were not dropped by the trial court. He is charged under Sections 308 (attempt to commit culpable homicide) and 323 (punishment for voluntarily causing hurt) of the IPC.
“In the present case, each respondent has been charged according to the extent of his/her role as visible from the material on record,” the judgment reads.
In this manner, the high court sets aside the trial court’s order to the extent of the discharge of the eleven persons, while also adding that “this court has not returned any finding on the merits of the case”, after having delved deeply into the material placed on the record.
Click here to view the Delhi High Court’s full judgment in State versus Mohd. Qasim & Ors., CRL.REV.P. 141/2023 & CRL.M.A. 3810/2023 (Neutral Citation No. – 2023:DHC:2191).
