Delhi High Court: By way of a revision petition under Section 397 of the Code of Criminal Procedure, 1973 (‘CrPC’), the State sought to set aside the impugned order passed by the Additional Sessions Judge, Special Judge (NDPS), Saket Court, New Delhi wherein the respondents were discharged and charges were framed only against accused 1 for offences punishable under Sections 143, 147, 148, 149, 186, 353, 332, 308, 427, 435, 323, 341, 120-B, 34 of Penal Code, 1860 (‘IPC’) and Sections 3 and 4 of Prevention of Damage to Public Property Act, 1984 (‘PDPP Act’). The single Judge Bench of Swarna Kanta Sharma, J., while exercising its criminal revision jurisdiction partially set aside an order discharging Sharjeel Imam, Safoora Zargar and Asif Iqbal Tanha and 8 others in 2019 Jamia violence case and stated that protest by violent means can never be part of democracy.
“Even if the purpose of their assembly was initially lawful to protest against the Government policy, had it been confined to the same by peaceful means and there would have been no insistence of use of force and violence in order to march to a curfew bound area, the case would have been different.”
In the matter at hand, some present and former students of Jamia Milia Islamia University (‘Jamia University’) gathered at gate no. 1 on 13-12-2019 to protest against National Register of Citizens and Citizenship Amendment Bill (‘CAB’), who were to march towards the Parliament of India from Jamia University. To maintain peace and public order, the police authority barricaded gate no. 1 of the Jamia University. Protestors persisted in raising incendiary and antagonistic slogans against the government and law enforcement agencies who also lacked authorisation to proceed to the Parliament House.
In the present case, it was an undisputed fact that the Trial Court had previously accepted both first and second supplementary chargesheet without any demur or indication for the investigating agency to furnish any further chargesheet within the prescribed time frame or prior to hearing the arguments on charge. Notably, the second supplementary chargesheet explicitly indicated the possibility of filing a third supplementary chargesheet, given the ongoing investigation. However, the Trial Court refused to accept the third chargesheet because:
The prosecution did not take leave of the Court to file third supplementary chargesheet and the same was filed at a belated stage.
The prosecution had presented the same mundane facts under the guise of ‘further investigation’.
In the case of Luckose Zachariah v. Joseph Joseph, 2022 SCC OnLine SC 241 it was observed that it was necessary for the Magistrate to have due regard to both the initial report submitted under Section 173(2) CrPC as well as the supplementary report which was submitted after further investigation in terms of Section 173(8) CrPC.
Article 21 of the Constitution of India enshrines and guarantees fair trial which was imperative of the dispensation of Justice. It was submitted that the said chargesheet was involved in the investigation of riots which had involved thousands of people when the Covid pandemic was at its peak due to which the investigation was not being carried out continuously which was duly mentioned in the first chargesheet.
“While the Courts have given weightage of this fact while granting relief to the accused(s) by granting them bail as trials and investigations were being delayed, the same grace has to be shown to the prosecution also as they were not only maintaining law and order during one of the most difficult periods of this country in recent time, the same police force was also performing many other duties related to Covid-19 pandemic, and they were at all places in the society trying to help everyone as they could.” stated the Court.
The Court did not agree with the observation made by the Trial Court that no fresh evidence was placed on record by way of third supplementary chargesheet. The Bench stated that the right of the prosecuting agency, does not bar filing of supplementary chargesheets, especially in cases where the previous chargesheet already mentions the prayer of the prosecuting agency that investigation was still underway.
Thus, the Court stated that the statements which had been filed along with the third chargesheet had to be taken cognizance of by the Trial Court since the right to file the supplementary chargesheet was neither closed nor was barred by the law that stands today as per Section 173(8) CrPC.
“Whether the filing of the statements along with the third chargesheet was an afterthought or were untrue could not have been decided or adjudicated upon by the learned Trial Court at the stage of charge itself.”
Prima Facie case of Unlawful Assembly and Rioting
The Court after perusing the video clips of the incident tendered by the State held that an uncontrollable mob allegedly of students had turned violent with dandas in their hands and pelting stones, destructing private and public property. The Bench opined that the conscious presence and participation of the accused point towards them forming unlawful assembly and rioting.
The Court stated that it was the State’s duty to prevent rioting and violent actions and if timely action was not taken by imposing Section 144 CrPC curfew in the volatile area, they would have been accused of being a dysfunctional and ineffective government machinery. Therefore, the Court noted that the gathered assembly at gate no. was not peaceful but were rather volatile and destructive.
Dismissing the argument furthered by the accused, the Court relied upon Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel, (2018) 7 SCC 743 which had observed that it was not essential that each and every member of the unlawful assembly must commit an offence in furtherance of the common object of assembly, mere knowledge of the likelihood of commission of such an offence by the members of the assembly was sufficient.
Further the Court disagreeing with the contention of the respondents that only 11 persons were picked up from a mob of thousands of protesters stated that merely because some persons could not be identified and have not been charge sheeted at present does not give a right of discharge to others who have been identified and connected with the offence in question.
“If the present accused persons have their identifications and want to disclose their identity to the Delhi Police, they may do so as they have every right to do that.”
The Bench disagreed with the contentions of the respondent that all the statements of police witnesses recorded under Section 161 CrPC were similar therefore, was false. The Court stated that all the witnesses were present at the spot who were a part of the same police team, receiving the same instructions and were doing the same duty as each other. Since they were witnessing the same incident, at this stage, their statements could not be held against them.
The Court opined that all the witnesses in their statements under Section 161 CrPC., filed along with the first chargesheet had categorically stated that Section 144 CrPC was imposed in the New Delhi area which was announced to the protesting mob and the same should have been given due weightage by the Trial Court, however, it discharged the accused persons on the premise that the said written order under Section 144 CrPC had not been placed on record.
The Bench stated that it is not the conspiracy or prior meetings of the mind in the present case, but it is the culmination of actions on the spot with specific intent by knowing the implications of such actions which attracts the elements of the offences alleged. A person may join unlawful assembly at any point of time when it is in progress and will be held responsible for all he must have done. Therefore, dismissed the argument presented by the respondents that it was a peaceful protest and at best respondents were either bystanders or were part of peaceful protest which was lawful under the Constitution.
Peaceful v Violent Protest
The Court stated that the law protects the right to express one’s views and protest peacefully, but the law does not protect or guarantee the right to protest and demonstrate violently, threaten the safety of others and damage the public property or threaten and damage their own campus and personal safety of others including the law enforcing agency and the student community is no exception to the same.
“The right to freedom of peaceful assembly cannot be aimed at destruction of rights and freedom of others who were not part of that protest.”
With the above observation, the Court held that:
and not under other sections of law mentioned in the chargesheet since there was not enough material against them to implicate them under those sections of law.
While agreeing with the observation made by the Trial Court, the Bench stated that the police could further investigate the matter and bring to book any other accused if so, identified involved in the violence, however, the impugned order was set side in entirety regarding discharge of respondents herein.
[State v Mohd Qasim, 2023 SCC OnLine Del 1835, decided on 28-03-2023]
Advocates who appeared in this case:
For the petitioner- Additional Solicitor General Sanjay Jain, Special Public Prosecutor Rajat Nair, Advocate Madhukar Pandey, Advocate Ashima Gupta, Advocate Dhruv Pandey and Advocate Arkaj Kumar;
For the Respondents- Advocate M.R. Shamshad, Advocate Abubakr Sabbaq, Advocate Arijit Sarkar and Advocate Nabeela Jamil, Advocate Kajal Dalal and Advocate Aparajita Sinha, Advocate Javed Hashmi, Advocate Farid Ahmad, Advocate Shahnawaj Malik, Advocate Talib Mustafa, Advocate Ahmad Ibrahim and Advocate Ayesha Zaidi, Advocate Sowjhanya Shankaran, Advocate Siddharth Satija and Advocate Abhinav Sekhri, Advocate Ayush Shrivastava, Senior Advocate Rebecca John, Advocate Mr. Ritesh Dhar Dubey, Advocate Praavita Kashyap, Advocate Anushka Baruah, Advocate Chinmay Kanojia, Advocate Pravir Singh and Advocate Adya R. Luthra.