New Delhi: The Delhi High Court Friday rejected AISA leader Neha Bora’s plea a against Delhi Police notice, asking her to execute a personal bond of Rs 10,000 and maintain peace.
A bench of Justice Subramonium Prasad dismissed her petition, which challenged a 17 October notice issued by the Special Executive Magistrate (SEM) under sections 126 and 130 of the Bharatiya Nyay Surakshan Samhita (BNSS) read with section 135 (3) BNSS.
Neha Bora’s petition before the HC sought quashing of the peace bond notice as well as the proceedings arising from it. Besides, it sought a direction to restrain the police from taking coercive action against her.
Justice Prasad, however, directed the SEM to furnish all the material relied upon for issuing the notice to Bora. He observed orally that adequate safeguards and directions have been issued to the SEM that he must provide Bora with all the material before passing an order to conduct an enquiry.
He also asked the SEM to examine whether section 135 BNSS would warrant production of the bond at the very first instance. Or, should it happen during the course of an enquiry and after an incident takes place. A detailed order is awaited.
Section 126 empowers an SEM to show cause an individual on why a peace bond may not be executed if he/she receives information that a person is likely to breach peace. Under section 130, such a magistrate acting under various BNSS sections can issue the show cause in writing.
Under section 135, an SEM can direct a person to execute a bond or bail bond—or detain them in custody—during a pending inquiry regarding the security for keeping the peace or good behaviour. Section 130 governs the mandatory written order a Magistrate must issue when initiating preventive security proceedings.
In her petition, Neha Bora maintained that on 16 October she had called for a peaceful gathering at Mandi House at 5 pm to unfurl the national flag at the Central Park in Delhi’s Connaught Place. This was part of a series of protests against the Chief Election Commissioner (CEC). Bora claimed she was detained on the same day at 5.30 pm, taken to an undisclosed location and subsequently moved to the RK Puram police station, where she was kept overnight before being released the next day on 17 October.
A day later, a notice, accusing her of sloganeering at Mandi House and repeating protests around Jantar Mantar, despite prohibitory orders, was issued to Bora.
Questioning this notice, Bora submitted in her petition that the same did not disclose any material establishing the likelihood of a breach of peace, a necessary precondition for initiating preventive proceedings.
The petition cited Supreme Court’s two orders—dated 11 and 15 October—saying that detention can only happen in accordance with the procedure established by law, particularly in cases where peaceful protests were carried out in areas that did not fall within the prohibited zone notified under section 163 of BNSS.
Senior advocate Gopal Sankaranarayanan, representing Bora, said the 16 October protest was peaceful and that she had never called for any violence.
Her detention on 16 October evening at Mandi House was without basis. She was not guilty of any offence, including breach of peace, he said, calling her detention “illegal”.
He said Bora was not involved in a separate protest called by “another organisation”, that is the CJP, to unfurl the national flag at Central Park in Connaught Place. Upon her detention, she was not allowed to reach out immediately to her family or lawyers. Also, the spot from where she was detained was not prohibited under section 163 BNSS. However, on the day of the protest, an announcement was made on loudspeakers that the provision was applicable to that area as well, he claimed.
Questioning the notice issued to Bora, the counsel agued that the personal bond can only be filled when an enquiry begins, which had not happened in the present case. The notice, according to him, was mechanical and that a preliminary enquiry was essential even before inviting someone for seeking an interim bond.
Only after completion of the enquiry can the magistrate direct the petitioner to execute a bond to maintain good behaviour, he said. The notice to Bora was given in the present case on “hearsay”, he told the court.
Additional Solicitor General Chetan Sharma told the court that the notice to Bora was on account of 12 violations by her and her statement in a press conference over “regime change”. Regime change happens by votes and not by “lumpen elements in the nerve of New Delhi”, he said.
The ASG rejected the allegation of non-application of mind. He said there was a definite source, a general diary entry, past FIRs and offences, the situation emerging on streets, and the SEM had also called the investigating officer who was asked to give an explanation. Thus, the ASG said, the proceeding was akin to a hearing before cognisance of an offence is taken.
During the hearing, the court sought to know from Sharma whether the SEM could brand someone “bad” without a hearing and impact their rights under Article 21. To this, Sharma said the SEM could not have ignored six FIRs issued against Bora.
He further said Section 163 CrPC was implemented in the area including Mandi House from where the petitioner was detained. “She says she has disassociated herself from other outfits… There was a barricade which said 163, she was stopped, police being outnumbered, she ran… She ran towards CP,” he told the bench.
(Edited by Viny Mishra)
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