The high court refuses to stay observations slamming the prosecution case against Sharjeel Imam and others; Delhi Police's revision plea against their discharge to be heard next on March 16.
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THE Delhi High Court on Monday refused to expunge observations by a lower court recording inter alia that the chargesheets filed by the Delhi Police were "misconceived" and that eleven of the accused were roped in as "scapegoats". In its criminal review petition, the State alleged that the trial court was "swayed by emotional and sentimental feelings".
On February 4 this year, a Delhi trial court had 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, 2019.
No interim stay was granted on the order as a single-judge bench of Justice Swarana Kanta Sharma issued notices to the discharged accused who could not have a counsel present at the hearing. The court allowed the respondent parties and the State to file their written submissions, but "not running into more than four pages", as suggested by a counsel. The court also asked for the trial court record to be placed before the high court by the next date of hearing on March 16.
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 that stage.
The Delhi Police had approached the high court under Section 397 of the Criminal Procedure Code (CrPC) to set aside the trial court's February 4 order. The criminal review petition decried the observations made by the trial court judge for casting "aspersions on the prosecuting agency" and passing "gravely prejudicial and adverse remarks against the prosecuting agency and the investigation".
On Friday, the high court had allowed the urgent listing of the revision plea, on a request by the Solicitor General of India Tushar Mehta.
The high court clarified that it may only examine the aspect of expunging certain remarks of the trial court at the final disposal 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.
During the hearing on Monday, Additional Solicitor General of India S.P. Jain first alleged that the trial court had disregarded the third supplementary chargesheet filed by the prosecution on the basis of a procedural technicality, but later accused the trial court of selectively considering the said chargesheet which, according to the prosecution, was the most significant in establishing the case against the accused.
The counsel for one of the discharged persons contested the allegation that the said charge sheet was not considered or considered selectively.
Jain also contended that the debate on where to draw the line between dissent and insurrection were meant to be had at seminars and lectures, rhetorically asking whether the trial court had been hearing a Constitution bench issue or a public interest litigation.
Denouncing the observations made by the trial court on the role of dissent in a democracy, the "perfunctory and cavalier" manner of prosecution and the duty of courts to protect the wrongly accused, the prosecution had asked the court to stay the observations recorded by Judge Varma.
"I have a great deal of objection with the trial court's observations", stated Jain, arguing that the order would prejudice further investigation and plans to file further chargesheets, and may prove as precedent for similar cases.
The high court did not accept the State's request to expunge the remarks at this time, while also clarifying that the observations would not be considered to influence further investigation in the case.
The trial against Mohd Ilyas a.k.a. Allen will continue.
No prohibitory orders
The court had 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.
Conspiracy, unlawful assembly not proved
Rejecting the contention of the public prosecutor, the court had held that though present at the site of the 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."
Accused made scapegoats
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 the 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 of the CrPC, 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.
"Prosecution cannot be launched on the basis of conjectures and surmises, and chargesheets definitely cannot be filed on the basis of probabilities," the court had observed.