Rejecting the police version of events — that alleged unlawful assembly, the violation of Section 144 of CrPC and conspiracy — a Delhi trial court earlier today discharged 11 persons accused of perpetrating violence in Jamia Nagar area of Delhi in 2019.
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ON Saturday, a Delhi trial court dropped the charges against student activists Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar and eight others in a case related to violence erupting in December 2019 during a protest against the controversial Citizenship (Amendment) Act. "Prosecution cannot be launched on the basis of conjectures and surmises, and chargesheets definitely cannot be filed on the basis of probabilities," the court said.
Calling the chargesheets as misconceived, Saket Court Additional Sessions Judge Arul Varma held that the role of the eleven accused was limited to being part of a protest. However, the trial court refrained from exonerating one of the accused, Mohd Ilyas, also known as Allen, at the present stage.
Eleven of the twelve accused in the case were discharged under Section 227 of the Code of Criminal Procedure (CrpC), which allows a trial court to discharge an accused if a judge finds that sufficient grounds for proceeding do not exist.
However, Imam will not be released from custody just yet, since he is also one of the accused in the 2020 Delhi riots 'larger conspiracy' case.
The court also concluded that there were no prohibitory orders under Section 144 of the CrPC in the area where the protest took place. It was found that while filing the first chargesheet and filing two supplementary chargesheets, no such written order was produced. Only by the time of filing of the third supplementary chargesheet, a written order was produced, but that too pertained to the area around the Parliament, and not near Jamia, where the alleged offences were said to have been committed.
The submission by Deputy Commissioner of Police R.P. Meena before the court in October 2022 that there was no written prohibition under section 144 operative at the protest site at time of the alleged offences supported this conclusion.
Rejecting the contention of the public prosecutor, the court held that though present at the site of protest, the eleven discharged accused persons were not part of an unlawful assembly. No overt act or participation in the commission of any offence was attributed to them, and there are no eyewitnesses to substantiate the version of the police, the court found.
Also refuting the charge that the protestors broke police barricades and proceeded against the police in spite of warnings, the court noted that not even prosecution witnesses have confirmed this. The photos and videos placed before the court by the prosecution also only show that the accused were standing behind the barricades, and none of the accused were seen brandishing any weapon or throwing stones. "Thus, there is no evidence that they resisted the execution of any law."
On the prosecution's charge that there was a pre-planned intention to violently protest, the court held that "[T]here isn't an iota of evidence" proving a shared common object by the accused with each other or with the crowd in general. "The chargesheets do not even contain a whisper or insinuation that the accused persons acted in tandem or that they coalesced at the spot after confabulating to do so."
While admitting that there were scores of protestors at the site, and some of them did create an environment of disruption and havoc, the court 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 moot question, according to the court, was,"Whether the accused persons were even prima facie complicit in taking part in the mayhem? The answer is an unequivocal 'no'."
Denouncing the State's actions in the case, the court held, "Such police action is detrimental to the liberty to peacefully assemble and protest. Liberty of protesting citizens should not have been lightly interfered with."
However, the court refrained from discharging Ilyas as a photo of him hurling a burning tyre had been published in a newspaper and the statements of prosecution witnesses pointed to overtly unlawful actions committed by him.
The discharge order cites Supreme Court's judgment in P. Vijayan versus State of Kerala (2010) which laid down the legal principles pertaining to discharge, holding that while exercising jurisdiction under Section 227, the trial court judge "cannot act a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case, and so on."
As per P. Vijayan, the court said it 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.
Click here to read the order.