Why the Delhi court avoided engaging with the larger case of the prosecution and granted her bail
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ON Monday a Delhi court granted bail to former Indian National Congress councillor Ishrat Jahan after observing that it was persuaded to do so "despite the embargoes" contained in the Unlawful Activities (Prevention) Act [UAPA] and the Code of Criminal Procedure.
The order, delivered by Additional Sessions Judge Amitabh Rawat of the Karkardooma district court, Delhi, in State vs. Ishrat Jahan, made a reference to Section 43D of the UAPA, which stipulates that bail shall not be granted to an accused if the court believes there are 'reasonable grounds' that the accusations are 'prima facie' true. In doing so, it added that "apart from a general conspiracy and applicability of UAPA, the material against the specific accused (that is, Jahan)" is what had to be seen.
Jahan was arrested in March 2020 under FIR No. 59/2020 for allegedly being part of a "grand conspiracy" to instigate the communal violence that broke out in Delhi in the last week of February 2020. She was charged under various sections of the Indian Penal Code, the Prevention of Damage to Public Property Act and the Arms Act, along with the draconian anti-terror legislation UAPA. The order noted that Jahan was not the person who had the idea of a chakka jam; nor was she a member of any organization or incriminating WhatsApp group that purportedly played a role in the conspiracy.
Further, it said that she was "not a member of Muslims Students of JNU (Jawaharlal Nehru University) or Jamia Coordination Committee (JCC) or any of the four WhatsApp groups created by JCC, or Pinjra Tod, or Students of Jamia (SOJ) or Alumni Association of Jamia Milia (AAJMI), or DPSG (Delhi Protest Support Group). " It added that it was also "not the case of the prosecution that she attended any meetings called by any of these organisations."
Notably, the order emphasized that the protest site she was involved with — against the Citizenship Amendment Act and National Register of Citizens — was not located at the site of the riots in North-east Delhi, but elsewhere in Khureji. The prosecution also alleged that she was the main organizer of the Khureji protests and called the other accused as speakers there (namely Shifa ur Rehman, Meeran Haider, and Sharjeel Imam, among others). She also allegedly attacked the police personnel in Khureji. To this, the court said: "Even if it is accepted that she had connectivity with the other accused persons, yet the fact remains that she was neither physically present in North-East Delhi for riots nor was she part of any group, organisation or WhatsApp groups…" The court pointed out that her name didn't crop up in the calls among the other accused or in any CCTV footage or in any of the conspiratorial meetings held in January and February 2020.
The special court in Karkardooma also directed the former Congress councillor to furnish a personal bond of Rs. 50,000 with sureties and enlisted several other bail conditions, including those prohibiting her from leaving Delhi without the Court's permission, tampering with the evidence or contacting witnesses.
The order, according to lawyer Abhinav Sekhri, differs from the previous bail orders in this case for the legal approach adopted, and marks the first instance of bail being granted to an accused by a special court in FIR No. 59/2020, with four other co-accused being granted bail by the Delhi High Court. Sekhri suggests that the court adopted a tightrope-walking technique which justified bail, but did not engage with the larger case of the prosecution.
Click here to view the court's full order.