New Delhi: Two young women with no priors are arrested by Delhi Police months apart for their alleged involvement in two separate episodes of violence in the national capital. Their bail petition is heard by the same judge, but the outcome is different.
While one of them, Safoora Zargar, 27, who was pregnant at the time of her arrest in April 2020, is denied bail, the other, 22-year-old Disha Ravi, is released from jail, with the judge taking note of her “absolutely blemish-free criminal antecedents”.
The perceived contradiction in the two judgments issued by Additional Sessions Judge Dharmender Rana of Delhi’s Patiala House Courts has fuelled some speculation, including on social media. However, legally, the two cases are on a different footing and cannot be compared.
Ravi has been charged with IPC sections for sedition, promoting enmity between different groups on grounds of religion, race, residence and language, acts prejudicial to maintenance of harmony, and criminal conspiracy.
She is accused of having a role in creating a farmers’ protest toolkit — shared online by climate activist Greta Thunberg — that Delhi Police alleges is linked to the 26 January violence and is part of a larger plan to stoke disaffection against the government.
Zargar, who faces conspiracy charges in connection with her participation in anti-CAA protests and their alleged role in stoking the Delhi riots last year, has been booked under the anti-terror Unlawful Activities Prevention Act (UAPA), which has inbuilt provisions on admissibility of evidence as well as bail, and brings into play a different legal perspective. Apart from the UAPA, she faces similar IPC charges as Ravi.
Zargar subsequently secured bail from the Delhi High Court in June 2020, as Delhi Police decided against opposing her plea on humanitarian grounds.
Onus on accused under UAPA
In regular criminal cases, bail is supposed to be the norm and pre-trial jail the exception. In cases like Ravi’s, bail is granted if it is shown that the accused is not likely to abscond or tamper with evidence.
But, the moment UAPA comes into play, bail becomes difficult.
Section 43D(5) of the UAPA says a person accused of an offence under Chapters IV and VI (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.
This provision of the UAPA — coupled with the Supreme Court’s 2019 judgment in the Zahoor Ahmad Shah Watali case — restricts grant of bail to an accused.
Unlike IPC offences, where an accused is presumed to be innocent unless proven guilty, the UAPA places the onus on the accused to rebut police charges.
Earlier this month, however, the top court relaxed this restriction and said that a person — including one charged under the UAPA — is entitled to a speedy trial, and is eligible for bail if the same is violated.
‘No evidence to establish what Disha Ravi did was seditious’
As he granted bail to Ravi, Rana held that the evidence available on record against her was “sketchy and scant”.
There are no “palpable reasons” to breach the settled legal principle that “bail is the rule and jail, exception” in the case, he said. Ravi, he added, is a “young lady, with absolutely blemish-free criminal antecedents and having firm roots in the society”.
The question before judge Rana in Disha’s case was whether the activist was merely involved in peaceful protest and dissent against the farm Acts, or actually involved in seditious activities under the guise of protesting against the laws.
“Violence seems to be the gravemen of the charge,” he noted in his order, citing the Supreme Court verdict in the 1962 Kedar Nath Singh case, which laid down strict contours for invoking sedition.
During the arguments, Additional Solicitor General S.V. Raju, representing Delhi Police, “fairly conceded” there was no direct evidence to establish the link between Ravi and 26 January violence.
The judge questioned the police accusation that Ravi was part of a “larger conspiracy to perpetuate violence” by secessionist forces to create disaffection against the elected government. He said such an inference has to be backed by evidence. However, the judge concluded, there was no material to establish any direct link between Disha Ravi and the founder of the “pro-Khalistani secessionist group”, Poetic Justice Foundation, as alleged by police.
There was nothing illegal or unlawful about the toolkit, and “any call for any kind of violence” was “conspicuously absent” in it, the judge said.
He drew a distinction between sedition and dissent to question police action in the case. He finally said Ravi could not be kept in jail only to give police more time to collect evidence or make her sit with the other accused.
‘UAPA validly invoked against Zargar’
In comparison, judge Rana’s dealing of Zargar’s bail plea was stricter, considering she was booked under the UAPA, besides the IPC offences of sedition, incitement, and promoting enmity between different groups.
The judge referred to the Kedar Nath Singh verdict in this case as well, but opined that “mere violence is not the gravemen of the charge under section 2 (o) of UAPA”, which was invoked against Zargar.
Even the tendency to create disorder or disturbance of law and order to such an extent that the entire city is brought to its knees and the entire government machinery brought to a grinding halt will be treated as “unlawful activity” within the UAPA, the judge said.
He did not go into the merits of the prosecution case, but, on the basis of statements recorded by police witnesses under sections 161 and 164 of the Criminal Procedure Code (CrPc), judge Rana held that the UAPA was rightly invoked against Zargar.
While statements recorded under Section 161 of CrPc are inadmissible in law, those recorded under Section 164 are accepted as evidence.
However, judge Rana refrained from discussing the contents of these statements in his order.
“From the statements of witnesses recorded under sections 161 and 164 coupled with WhatsApp chats” provided to him, the judge “safely inferred” that there was a conspiracy to carry out a blockade of roads during the anti-CAA protests.
The judge said there was prima facie evidence of existence of a conspiracy and statement made by any one of the conspirators, in furtherance of the common object, is admissible against all. This finding was in the context of Zargar’s claim that she was not present at the spot where the riot took place.