New Delhi: “Prosecution cannot be launched on the basis of conjectures and surmises,” the Saket District Court said Saturday as it discharged Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in the 2019 Jamia violence case.
It also observed that dissent needs to be encouraged, while adding that the display of such dissent should be peaceful.
Imam, Zargar and Tanha are student leaders and activists who gained prominence during the 2019-2020 protests against the Citizenship Amendment Act (CAA).
Delhi Police had alleged that a mob blocked traffic movement and damaged vehicles during a protest against the CAA in Delhi, in December 2019, and that the “rioters” were instigated by a speech delivered by Imam. The Jamia incident is seen to be a precursor to the 2020 northeast Delhi riot.
In a detailed order passed Saturday, additional special judge Arul Verma discharged eleven of the twelve accused in the case, noting that Delhi Police had been unable to apprehend the actual perpetrators of the violence, but roped in the eleven as “scapegoats”.
Only one of the twelve initial accused, Ilayas (also known as Allen), will now be tried, owing to photographs of him hurling a burning tyre, the court added.
This was one of three total cases registered against Imam, two of which are related to the 2019 Jamia violence, while the third charges him of being part of a conspiracy for the 2020 northeast Delhi riots. He is facing sedition charges in the second Jamia case.
The Saket District Court Saturday, while discharging the 11, said that the State’s case had been launched in a perfunctory and cavalier fashion, and allowing the accused to undergo criminal trial does not augur well for the criminal justice system of the country.
The order cleared the eleven of several criminal charges, including criminal conspiracy, violation of Section 144 of the Code of Criminal Procedure (prohibiting gathering of four or more people), and noted several loopholes in the conduct of the case.
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‘Chargesheets an afterthought, highly deplorable’
The court observed that the prosecution had filed three chargesheets containing the same material, while erroneously noting that it had the permission of the court.
“This interpolation i.e. moving the application ‘for conducting further investigation’ is highly deplorable, for no such permission was either sought, nor given…,” the court noted.
It added that the supplementary chargesheet had the same photographs and statements previously submitted and that photo identification of witnesses was done belatedly.
“The investigative agency has not produced fresh evidence, rather has sought to present the same old facts in the garb of further investigation,” it noted.
“This filing of a slew of chargesheets must cease, else this juggernaut reflects something beyond mere prosecution and would have the effect of trampling the rights of the accused persons,” the court added.
Referring to a 1976 Supreme Court case, the court said that the mere innocent presence in an assembly would not make one a member of an “unlawful assembly”.
It said that a perusal of the record indicated that even though the eleven accused were present at the spot, they were not a part of the unlawful assembly.
“No overt act or participation in the commission of the offence were attributed to them. There are no eyewitnesses who could substantiate the version of the police that the accused persons were in any way involved in the commission of the offence”, the court noted.
‘No prohibitory order’
The court observed that while a few police witnesses had said that Section 144 was in force at the time, no such notification was placed before the court until recently.
The court noted that when the initial chargesheets were filed, there was no evidence of such an order. It was only when the third supplementary chargesheet was filed that an order of Section 144 near Parliament was produced.
“There was no prohibitory order u/s 144 CrPC in force in the area where the protests took place,” the court noted.
While the State had contended that the accused were “resisting the execution of law” by proceeding towards Parliament, the Court dismissed the allegations and said that “there is no shred of evidence” that the accused crossed the barricades which were put by the police.
“There is nothing on record to even prima facie suggest that the accused herein were part of some riotous mob,” the court said.
It further noted that there was not an iota of evidence that proved that the accused shared a common object or were aware of whether the other protestors were armed.
‘No proof of conspiracy’
The court further noted that the chargesheet did not even contain a whisper or insinuation that the eleven accused acted in tandem. It said that “meeting of the minds” (agreement of accused to commit an offence) is essential to a conspiracy, which was not present.
It added that the State did not place any documentary evidence that the eleven accused were interacting with each other or provided any proof of a larger conspiracy.
“Even in the photographs, all the twelve accused are not standing side by side. In the video also, they are not seen signalling or talking to each other,” the Court observed, holding that charges of conspiracy, too, are not maintainable.
The court noted that the witnesses relied on to establish its case were insufficient since until the filing of belated chargesheets, there were no witnesses which could identify the accused.
“They could identify the accused only after filing of third supplementary chargesheet. Is the police so unsure about its case?” asked the court.
The court also referred to a 1964 “seminal verdict” of the Supreme Court, which had held that in an offence involving a large number of offenders, it can only be sustained where two or more witnesses give a consistent account of the incident.
The State had contended that the rule of witnesses was not a thumb rule but only a “rule of prudence”. However, the court said that the 1964 decision on the requirement of witnesses was the law of the land.
The court also noted that dissent is a fundamental right, subject to reasonable restrictions, and a right it was “sworn to uphold”.
“Dissent has to be encouraged and not stifled,” the court said, adding that dissent must be absolutely peaceful and non-violent.
Investigating agencies should have used technology or other intelligence to gather evidence and only then proceeded against the accused or should have abstained from filing ill-conceived chargesheets against the eleven, it said.
(Akshat Jain, a student of law at NLU, Delhi, is an intern with ThePrint.)
(Edited by Poulomi Banerjee)
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