New Delhi: Pinjra Tod activist Devangana Kalita was present in a peaceful agitation, which is a fundamental right guaranteed under Article 19 of the Constitution of India, the Delhi High Court said Tuesday, while granting her bail in a case registered against her for her alleged participation in the Northeast Delhi riots in February this year.
A bench of Justice Suresh Kait made this observation in the bail order after he perused the Delhi Police case diary that was produced before him in a sealed cover.
This is the third case against Kalita in connection with the riots in which she has got bail. She will, however, not be released from jail because Delhi Police’s Special Cell is probing her alleged role in the riots in a case filed by it to unearth the larger conspiracy behind the violence.
While granting bail to her, the judge said the police had failed to produce any material to show Kalita had instigated women of a “particular community” or gave “hatred speech” due to which precious life of a young man has been sacrificed and property damaged.
Kalita was arrested on 24 May in connection with a case registered by Delhi Police’s Crime Branch on 26 February under various sections of the IPC, including attempt to murder, Arms Act and Prevention of Damage to Public Property. The HC order came on a bail application filed by her.
According to the police, Kalita’s presence at the spot was disclosed by a witness in his statement recorded before the magistrate under Section 164 of the criminal procedure code (CrPc).
However, Justice Kait debunked this theory and said the witness never named Kalita in his statement. Further, he also noted that the disclosure statements of all witnesses were recorded in June and July, four months after the riots broke out in February.
“Admittedly, agitation was going on since long, print and electronic media was present throughout, in addition to cameras of police department, but there is no such evidence, which establishes that the alleged offence has taken place on the act done by the petitioner, except statements recorded under section 164 CrPC much belatedly, though those witnesses allegedly remained present at the spot throughout,” stated the order.
In the case lodged against Kalita by Delhi Police’s Special Cell, non-bailable sections under the stringent UAPA have been invoked and the police last month got time until 17 September to complete its probe in the case. The judge observed in his order that Kalita was not named in this FIR. Yet, she gave her phone to the police for the purposes of investigation.
‘Kalita is a student and has sufficient standing in society’
Justice Kait gave bail to Kalita after testing her case on the parameters laid down by the Supreme Court while granting bail to former Union minister P. Chidambaram in the INX Media case last December. He said Kalita’s case satisfied the principles reiterated by the top court in this verdict.
“Personal liberty is the most important fundamental right guaranteed by the Constitution. Furthermore, it is the fundamental principle of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty,” the judge said, adding refusal of bail is a restriction on personal liberty.
The bench noted Kalita was arrested without a notice and evidently did not evade arrest or even file for anticipatory bail “because she had no reason to believe that she ought to be in custody”. She was available at her home a day before she was arrested and even provided her phone to the police, the judge said.
“The petitioner is a student pursuing her higher education and sufficient standing in society without any possibility of fleeing from justice,” he added, rejecting the police argument that she might tamper with evidence.
The court said the police were in possession of all the evidence related to her participation in the protests.
With regard to the third argument of police that Kalita would influence witnesses, the judge remarked: “… the petitioner is not in a position to influence witnesses in the FIR, which in any event appears to relate to public servants/police officials, and in any case she came to be arrested almost three months after the registration of the FIR.”
‘Release would protect Kalita from further humiliation’
Appearing for Delhi Police, additional solicitor general S.V. Raju had submitted that Kalita was capable of absconding since she is a resident of Assam and her husband is a resident of the United Kingdom.
He even argued that there was a likelihood of the offence being repeated, for she is a key member of Pinjra Tod group, which continuously ran a sustained media campaign against the investigating agency on social media to “obfuscate and discredit the process of law”.
However, the judge took into record Kalita’s qualification and said: “In my considered opinion, no prejudice would be caused to the respondent’s investigation by grant of relief to the petitioner, and she would be prevented from suffering further unnecessary harassment, humiliation, and unjustified detention.”
According to the order, Kalita will have to furnish a personal bond of Rs 25,000 with one surety of the same amount. She was directed not to influence any witness or tamper with the evidence and was told to apply for the court’s permission to travel abroad.
The court even asked the trial court, hearing the case, not to get influenced by its observation made in the case.
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