Case BriefsDistrict Court

Karkardooma Courts, New Delhi: On finding no sufficient evidence, Virender Bhat, ASJ-03, granted bail to the accused persons who looted a medical shop and three houses during the Delhi Riots.

Accused have been charge-sheeted by the police for having committed offences under Sections 147, 148, 149, 188, 120-B, 436, 380, 455 of Penal Code, 1860.

It is alleged that in February 2020 a mob consisting of several 100 rioters who were armed with rods, pipes, stones, petrol bottles, etc. and raising slogans “Jair Shree Ram”, were coming from Ghonda Road towards New Usmanpuri where the complainant Firoz Khan resided and used to run a medical store.

Upon seeing the mob, the complainant locked the main gate of the house and went alongwith his family to the house of his uncle which was in front of his house.

Later, the mob broke open the shutter of the complainant’s medical store and also the main gate of his house and looted the medical store as well as the house and the mob left after vandalizing his house, three adjacent shops and some other adjacent houses.

Two accused were arrested and had admitted their involvement in the incident involved. On the basis of their statement, other accused persons were also arrested.

Analysis, Law and Decision

Bench stated that it needs to be noted that at the time of deciding the charges against the accused, Court was not expected to go deep into the probative value of the material on record.

Court stated that,

What is required to be seen at this stage is whether, the conviction of the accused is reasonably possible if the material on record remains unrebutted or whether there is strong suspicion which may lead the Court to think that there is ground for presuming that the accused has committed the offence.

Since the present matter was the outcome of the riotous incident in which a large number of persons were involved, observation of Supreme Court in Masalti v. State of U.P., AIR 1965 SC 202 become relevant in which the principle was to how a criminal Court should deal with the evidence pertaining to the commission of offence involving in a large number of offenders and large number of victims, had been laid down.

In the present matter, it was evident that from the perusal of the entire charge sheet that there was only one witness who identified the accused as the assailants who were part of the mob.

Charges cannot be framed against the accused upon taking into account the material annexed with the chargesheet on the basis of which there is no possibility of the conviction of the accused at the final stage.

Therefore, there was not sufficient evidence on record on the basis of which charges can be framed against the accused. In view of the said reasoning, bail was granted.

Before parting, Court expressed that,

“Court is not insensitive towards the mental agony and the financial loss suffered by the complainant due to this incident. However, the sensitivity or the emotions alone are not the factors to be taken into consideration by the court while deciding the fate of any accused. These cannot take place of evidence. There should be sufficient and legally admissible evidence on the basis of which charges can be framed against an accused, which is lacking in the instant case.”

Direction

In view of the above-stated facts and circumstances of the case, where accused are being let off not because the incident in question had not happened or the accused appear to have been falsely implicated but merely for the reason that there is no sufficient evidence produced against them, Court directed the DCP North­ East District conduct an enquiry into the manner in which the investigation was conducted by the IO, in this case, to find out whether or not there had been any deliberate attempt to shield the offenders and submit a report to this Court on the next date of hearing.[State v. Raj Kumar, Sessions Case no. 284 of 2021, decided on 22-11-2021]

Case BriefsSupreme Court

Supreme Court: In a postscript to its 188-pages long judgment in Ajit Mohan v. Delhi Legislative Assembly (wherein it was held that representatives of Facebook will have to appear before the Committee constituted by Delhi Legislative Assembly for looking into Facebook’s role in aggravating Delhi Riots which broke out last year), the 3-Judge Bench of Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy, JJ. stressed upon the need for timely disposal of cases. The way forward, in dealing with the likely post-COVID surge in number of cases pending adjudication, was also discussed.

The Court said that the purpose of the postscript was only to start a discussion among the legal fraternity by bringing to notice the importance of succinctly framed written synopsis in advance, and the same being adhered to in course of oral arguments to be addressed over a limited time period and more crisp, clear and precise judgments so that the common man can understand what is the law being laid down.

The Court expressed that COVID times have been difficult. The judiciary and the bar are no exception. It was noted that this was a contributing factor in there being a period of four months between reserving the judgment and pronouncing the order in the Ajit Mohan case. But this was not the only reason. The “saga of hearing” lasted 26 hours ─ which the Court said is “a lot of judicial time”. Daily time period was recorded. Apart from pleadings, there were written synopses, additional written synopses, rejoinders and replies filed liberally by both parties. The convenience compilations themselves were very voluminous, in contradiction to their very purpose.

Concern of the Court was if this is how the proceedings will go on in the future, “it will be very difficult to deal with the post-COVID period, which is likely to see a surge in the number of cases pending adjudication”. The Court then discussed “the way forward”.

Clarity in Thought Process

The Court said it believes that there needs to be clarity in the thought process on what is to be addressed before the Court. Counsels must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides “and then strictly adhered to”.

Restriction on Time Period for Oral Submissions

The Court said that much as the legal fraternity would not want, restriction of the time period for oral submissions is an aspect that must be brought into force.

Instead of restricting oral arguments it has become a competing arena of who gets to argue for the longest time.

Looking into this aspect, the Court then referred to a few international best practices including Article 6 of the European Convention on Human Rights ─ which while recognising the right of fair trial and public hearing, qualifies it inter alia to be completed “within a reasonable time”. This is intrinsically linked to administering justice without delays.

The Court said that delay in judicial proceedings has been the bane of our country and there cannot be a refusal to part ways from old practices especially when they have outlived their purpose. It is the litigants who bear the costs of our complex and prolonged adjudicatory process.

Clear and Short Judgments

The Court was conscious of the “equal responsibility of this side of the bench”. “It is the need of the hour to write clear and short judgments which the litigant can understand”, the Court said. It was advised that:

The Wren & Martin principles of precis writing must be adopted.”  

But then, the Court was perplexed, as to how this is to be achieved if the submissions itself go on for hours on end with vast amounts of material being placed before the Court; with the expectation that each aspect would be dealt with in detail failing which review applications will be filed.

Use of Judicial Precedents

The Court noted that it is weighed down by judicial precedent. Often a reference is made to the judgment of the Privy Council or the earlier years of the Supreme Court which saw short and crisp judgments, but then the volume of precedents the Court faces today was not present then. In today’s technological age, all that is required is to instruct the junior counsel to take out all judgments on a particular point of view and submit it to the Court in a nice spiral binding. On every aspect, there may be multiple judgments.

The Court was of the opinion that if the proposition of law is not doubted by the Court, it does not need a precedent unless asked for. If a question is raised about a legal proposition, the judgment must be relatable to that proposition ─ and not multiple judgments. The other scenario is if the facts of the cited judgments are so apposite to the facts of the case that it could act as a guiding principle.

The contribution to the development of law can be nurtured by comprehensible precedent. There may be times when the complexity of matters gives rise to complex opinions. But the judgments are becoming more complex and verbose only on account of large number of precedents cited and the necessity to deal with them and not merely refer to them as is done in other countries.

Case Management

The Court recorded that case management has been discussed for long, but seldom is it followed in its true letter and spirit. This may possibly be because of the large volumes of cases, but then this is all the more reason for better management.

Referring to the US Supreme Court,  it was noted that there the norms and the traditions take care of the requirement of restrictive time frames to address submissions; which are preceded by the contours of arguments given in the written synopsis and the material sought to be relied upon.

The Court did not doubt that lawyers think on their feet but then, the Court said:

[G]iven the current milieu, there has to be clarity before the lawyers get on their feet keeping a little leeway in mind for something which may evolve during the arguments.

As of 1-5-2021, the Supreme Court of India had 67,898 pending matters. The Court expressed that the time spent on routine matters leaves little time to settle legal principles pending before larger Benches that may have an impact down the line on the judicial system.

Interim Proceedings

While concluding, the Court noted that another matter of concern is prolonged interim proceedings. In criminal matters, even bail matters are being argued for hours together and at multiple levels. The position is no different in civil proceedings where considerable time is spent at an interim stage when the objective should be only to safeguard the rights of the parties by a short order, and spend the time on the substantive proceedings instead which could bring an end to the lis rather than on the interim arrangement. In fact, interim orders in civil proceedings are of no precedential value. It was noted by the Court that this is the reason it is said that:

[W]e have become courts of interim proceedings where final proceedings conclude after ages ─ only for another round to start in civil proceedings of execution.

The Court ended by stating that by this post script it intended to start a discussion among the legal fraternity on the issues touched upon. [Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456, decided on 8-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench comprising of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ. has held that representatives of Facebook will have to appear before the Committee on Peace and Harmony constituted by the Delhi Legislative Assembly. At the same time, the Court felt constrained to put certain fetters qua the exercise sought to be undertaken by the Committee.

The instant petition challenged the notices issued by the Committee directing the petitioners to appear before it. The Conclusion of the Court is delineated below, after which follows a detailed analysis of the controversy and the Court’s discussion and opinion.

(i) There is no dispute about the right of the Delhi Assembly or the Committee to proceed on grounds of breach of privilege per se.

(ii) The power to compel attendance by initiating privilege proceedings is an essential power.

(iii) Members and non-Members (like the petitioners) can equally be directed to appear before the Committee and depose on oath.

(iv) In the given facts of the case, the issue of privileges is premature. Having said that, the insertion of para 4(vii) of the Terms of Reference of the Committee taken along with the press conference of the Chairman of the Committee could legitimately give rise to apprehensions in the mind of the petitioners on account of which a caveat has been made.

(v) Canvassing a clash between privilege powers and certain fundamental rights is also preemptory in the present case.

(vi) In any case, the larger issue of privileges vis-a-vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger Bench in N. Ravi v. T.N. Legislative Assembly, (2005) 1 SCC 603.

(vii) The Delhi Assembly admittedly does not have any power to legislate on aspects of law and order and police in view of Entries 1 and 2 of List II in the Seventh Schedule inter alia being excluded. Further, regulation of intermediaries is also subject matter covered by the Information and Technology Act, 2000.

(viii) The Assembly does not only perform the function of legislating; there are many other aspects of governance which can form part of the essential functions of the Legislative Assembly and consequently the Committee. In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of on the ground governance being in the hands of the Delhi Government.

(ix) Para 4(vii) of the Terms of Reference does not survive for any opinion of the Committee. It will not be permissible for the Committee to encroach upon any aspects strictly within the domain of Entries 1 and 2 of List II of the Seventh Schedule. As such, any representative of the petitioners would have the right to not answer questions directly covered by these two fields.

Disruptive Potential of Social Media

In the opening paras, the Court noted that,

“[W]hile social media, on the one hand, is enhancing equal and open dialogue between citizens and policy makers; on the other hand, it has become a tool in the hands of various interest groups who have recognised its disruptive potential. This results in a paradoxical outcome where extremist views are peddled into the mainstream, thereby spreading misinformation.

Established independent democracies are seeing the effect of such ripples across the globe and are concerned. Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. This has given rise to significant debates about the increasing concentration of power in platforms like Facebook, more so as they are said to employ business models that are privacy-intrusive and attention soliciting. The effect on a stable society can be cataclysmic with citizens being ‘polarized and parlayzed’ by such ‘debates’, dividing the society vertically. Less informed individuals might have a tendency to not verify information sourced from friends, or to treat information received from populist leaders as the gospel truth.”

Later, the Court also said that the unprecedented degree of influence of social media necessitates safeguards and caution in consonance with democratic values. Platforms and intermediaries must subserve the principal objective as a valuable tool for public good upholding democratic values. Our country has a history of what has now commonly been called ‘unity in diversity’. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role.

Use of Algorithms and the Role of Facebook

The Court rejected the simplistic approach adopted by Facebook ─ that it is merely a platform posting third party information and has no role in generating, controlling or modulating that information. The Court said that companies like Facebook cannot deny that they use algorithms (sequences of instructions) with some human intervention to personalise content and news to target users. The algorithms select the content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective with biases capable of getting replicated and reinforced. The role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content.

Factual Context and the Writ Petition

The backdrop of the present case is set in the unfortunate communal riots in different parts of North-East Delhi in February, 2020. In the wake of these riots, the Legislative Assembly of NCT of Delhi resolved to constitute a Committee on Peace and Harmony to a “consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups.”

The Committee received thousands of complaints which suggested that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony. This was further fuelled by an article published in the Wall Street Journal on 14-8-2020 titled “Facebook’s Hate-Speech Rules Collide with Indian Politics” suggesting that there was a broad pattern of favouritism towards the ruling party and Hindu hardliners. The Article also made serious allegations of lapses on the part of Facebook India in addressing hate speech content.

Subsequently, the Delhi Assembly issued notice for appearance (“first summons”) to the Mr Ajit Mohan, Vice President and Managing Director of Facebook India. Mr Mohan was the first petitioner in the instant writ petition. The first summons highlighted the factum of numerous complaints alleging intentional omission and deliberate inaction on the part of Facebook in tackling hate speech online. It was clearly stated that he was being called as a witness for testifying on oath before the Committee on 15-9-2020. Significantly, no consequences in the form of breach of parliamentary privilege were intimated in case Mr Mohan refused to appear.

In its reply, Facebook objected to the first summons and requested to recall it. This was rejected by the Delhi Assembly, and a second summons was issued. It is at this stage that a perceived element of threat was held out to Mr Mohan stating that his refusal to appear was inconsistent with the law of privileges of a legislature (which extends to the Committee and its members). He was asked to appear before the Committee on 23-9-2020 in the “spirit of democratic participation and constitutional mandates.” Importantly, it was clearly stated that non-compliance would be treated as breach of privilege of the Committee and necessary action would be taken.

It is this second summons which triggered the filing of the instant proceedings under Article 32 of the Constitution of India. It was prayed that (a) the first and the second summons be set aside; (b) the Delhi Assembly be restrained from taking any coercive action against the petitioners in furtherance of the impugned summons. Notably, during pendency of the proceedings, the two summonses issued to Mr Mohan were withdrawn and a new summons dated 3-2-2021 was issued to Facebook India alone.

Analysis and Opinion

Contradictory stand in different jurisdictions not acceptable

“Facebook has the power of not simply a hand but a fist, gloved as it may be.”

The Court was not convinced by the simplistic approach of Facebook, and was of the view that the business model of intermediaries like Facebook being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Thus, for example in the USA, Facebook projected itself in the category of a publisher, giving them protection under the ambit of the First Amendment of its control over the material which are disseminated in their platform. This identity has allowed it to justify moderation and removal of content. Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to population of different countries seeks to modify its stand depending upon its suitability and convenience. The Court said:

Role of Facebook need to be looked into

Turning to the incident at hand, the Court said that the capital of the country can ill-afford any repetition of the occurrence and thus, the role of Facebook in this context must be looked into by the powers that be. It is in this background that the Assembly sought to constitute a peace and harmony committee. The Assembly being a local legislative and governance body, it cannot be said that their concerns were misconceived or illegitimate. It is not only their concern but their duty to ensure that “peace and harmony” prevails.

Three broad heads

(a) Issue of Privilege

The privilege issue arose out of the plea advanced by the petitioners that both, the first and the second summons, were to summon petitioners with a threat of “privilege”. This argument was coupled with a plea that such power of privilege cannot extend to compel an individual, who is not a member of the House, into giving evidence/opinion that he is not inclined to state.

While on this, the Court noted that the wordings of Article 194(3) of the Constitution of India are unambiguous and clear. It was the Court’s opinion that it would be a monumental tragedy to conclude that the legislature is restricted to the function of enacting laws. The legislature debates many aspects, and at times records a sense of the House. This is not unusual or without precedent. Further, once the wider array of functions performed by an elected Parliament or Assembly, not confined to only enacting laws is recognised, any act in furtherance of this wider role and any obstruction to the same will certainly give rise to an issue of parliamentary privilege.

The Court saw no merit in the line of argument that no non-member could be summoned if they had not intruded on the functioning of the Assembly; or that the non-participation of the petitioner would not have adverse consequences as it did not disrupt the functioning of the Committee. The petitioners, more so with their expanded role as an intermediary, can hardly contend that they have some exceptional privilege to abstain from appearing before a committee duly constituted by the Assembly.

Noting that only a summons has been issued for appearance before the Committee and the question of any privilege power being exercised is yet far away; the Court observed:

“This case is a preventive endeavour by the petitioner to preclude the respondents from even considering the aspect of privilege by seeking this Court’s intervention at a pre-threshold stage, only on the premise of the absence of legislative power.”

The Court was not impressed by the argument that the privilege powers of the Assembly are not constitutional in character but flow only from the Government of National Capital Territory of Delhi Act, 1991. It was Court’s opinion that the scheme of privilege has to be seen in the context of provisions of Article 239-AA of the Constitution, as well as the GNCTD Act. They are not divorced from each other.

The Court held the power of the Assembly to summon in the format it sought to do is beyond exception and in accordance with law; and that the stage for any possible judicial intervention had not arisen in the instant case.

(b) Privileges, Free Speech and Privacy

Petitioners sought to pit the expanded right of free speech and privacy against privilege, emphasising that the petitioner had a right to remain silent. It was submitted that the mere threat of “necessary action” i.e., the possibility of a breach of privilege, was enough to infringe both the right to free speech and privacy. Thus, “the threatened invasion of the right” could be “removed by restraining the potential violator”.

The Court refrained from entering into any substantial discussion on this point, as such issue is also a subject of reference pending consideration before a 7-Judge Bench.

(c) Legislative Competence

This head dealt with the perceived remit of the Committee and whether the remit has the sanction of the Constitution in the context of division of subject matter under the three Lists of the Seventh Schedule. The bedrock of petitioner’s submissions was based on the alleged lack of legislative competence of the Delhi Assembly and consequently of the Committee to look into the subject matter qua which the notice had been issued to the petitioners. The submission, thus, was that in the absence of any such legislative competence, the petitioners were entitled to approach the Court at this stage itself rather than being compelled to wait for further progress in the proceedings.

On this, the Court reiterated the proposition that the division of powers between the Centre and the State Assemblies must be mutually respected. The concept of a wide reading of Entries (in the three Lists) cannot be allowed to encroach upon a subject matter where there is a specific entry conferring power on the other body. The Court was of the view that the recourse to Entries 1 and 2 of List III cannot be said to include what has been excluded from the powers of List II, i.e., Entries 1, 2 and 18. Similarly, Entry 45 of List III relating to inquiries would again not permit the Assembly or the Committee to inquire into the aspects of public order or police functions. That a law and order situation arose was not disputed by anyone, and that this law and order issue related to communal riots also could not be seriously disputed. That the Assembly cannot deal with the issue of law and order and police is also quite clear.

“Peace and Harmony” as opposed to “Law and Order”

The respondent’s argument was premised on a broader understanding of the expression “peace and harmony”, as opposed to it being restricted to law and order.

The moot point was whether the expression “peace and harmony” can be read in as expanded a manner as respondent sought to do by relying a on a number of Entries in List II and List III. The Court had no doubt that peace and harmony, whether in the National Capital or in a State context, is of great importance. But it would be too much to permit the argument that peace and harmony would impact practically everything and thus, gives power under different entries across the three lists.

The divergent contentions lead the Court to conclude that the Committee can trace its legitimacy to several Entries in List II and List III without encroaching upon the excluded fields of public order or police to undertake a concerted effort albeit not to the extent as canvassed by the respondents. Facebook cannot excuse themselves from appearing pursuant to the new summons issued to them on 3-2-2021. Areas which are not otherwise available to the legislature for its legislative exercise may, however, be legitimately available to a committee for its deliberations. This is so in the context of a broad area of governmental functions. Ultimately, it is the State Government and the State Assembly which has to deal with the ground reality even in the dual power structure in Delhi. The complexity of communal tensions and their wide-ranging ramifications is a matter affecting citizens of Delhi and it cannot be said that the Government of NCT of Delhi cannot look into the causal factors in order to formulate appropriate remedial measures. Appropriate recommendations made by the State Government in this regard could be of significance in the collaborative effort between the Centre and the State to deal with governance issues.

The Court was of the view that because of the pervasive impact of the riots, the Committee could legitimately attend to such grievances encompassing varied elements of public life. Thus, it would be entitled to receive information and deliberate on the same to examine their bearing on peace and harmony without transgressing into any fields reserved for the Union Government in the Seventh Schedule.

Terms of Reference of the Committee on Peace and Harmony

The Court discussed that a part of the Terms of Reference of the Committee on Peace and Harmony was clearly outside the purview of the powers vested with the Assembly. This problem was compounded by what transpired in the press conference held by the Chairman of the Committee. Speaking on behalf of the members of the Committee, the Chairman made certain statements that assume greater significance by virtue of being in the public domain.

While respecting the right of the Committee to the extent that there exists an obligation on the petitioners to respond to the summons, the Court was of the view that it could not permit the proceedings to go on in a manner that encroaches upon the prohibited entries. The Court did not seek to control how the Committee proceeds. In fact, the Committee was yet to proceed. But certain provisions of the Terms of Reference coupled with the press conference is what persuaded the Court to say something more than simply leaving it to the wisdom of the Committee to proceed in the manner they deem fit.

The Court found that para 4(vii) of the Terms of Reference was a troublesome aspect. It read: “(vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence”.

It was held by the Court that clearly it is not within the remit of the Assembly to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement of violence. This is an aspect purely governed by policing. It is the function of the police to locate the wrong doer by investigation and charge them before a competent court.

In order to justify the legislative competence and the remit of the Committee, the respondents practically gave up this para 4(vii) and the Court made it clear that this cannot be part of the remit of the Committee.  It was also recorded that by issuing the new summons which withdrew the earlier summons, fallacies in the notices stood removed.

Press-conference by Chairman of the Committee

The Court noticed that the statements made by the Chairman of the Committee during the press conference on 31-8-2020 could not be diluted or brushed aside. It was stated by the Chairman that the material placed before the Committee had resulted in a “preliminary conclusion”. Thereafter it was stated that “prima facie it seems that Facebook has colluded with vested interests during Delhi riots”. He further said: “Facebook should be treated as a co-accused and investigated as a co-accused in Delhi riots investigation”, and “As the issue of Delhi riots is still going in the court, a supplementary chargesheet should be filed considering Facebook as a co-accused”.

Such statements and conclusions, as per the Court, were completely outside the remit of the Committee and should not have been made. That it may give rise to apprehension in the minds of the petitioners could also not be doubted. Such statements are hardly conducive to fair proceedings before the Committee and should have been desisted from. This is especially so as that was not even the legislative mandate, and the Assembly or the Committee had no power to do any of these things.

Putting fetters qua the exercise undertaken by the Committee

In view of the aforesaid, while giving the widest amplitude in respect of inquiry by a legislative committee, the Court was constrained to put certain fetters in the given factual scenario otherwise tomorrow the proceedings itself could be claimed to be vitiated.

The Court said that the Committee cannot have a misconception that it is some kind of a prosecuting agency which can embark on the path of holding people guilty and direct the filing of supplementary chargesheet against them. This aspect has to be kept in mind by the Committee so as to not vitiate future proceedings and give rise to another challenge.

In any eventuality, as speculative as it may be, if the Committee seeks to traverse the path relating to the excluded Entries, i.e. law and order and police, any representative of Facebook who would appear before the Committee would be well within their right to refuse to answer the query and such an approach cannot be taken amiss with possibility of inviting privilege proceedings.

The Court expressed its confidence that such an eventuality will not arise, given the important role that the Committee is performing and that it will accept the sagacious advice. So much and not further.

The writ petition was accordingly dismissed. [Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456, decided on 8-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


 

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., while addressing a matter with regard to the Order issued by Delhi Police on 8-07-2020 in respect to the arrests being made in the Delhi Riots matter, made a suggestion that,

“media being the fourth pillar of democracy, news should be clear after verifying the facts so that no prejudice is caused to anyone or hatred is spread among communities in this country.”

Court refused to quash the order issue dby Delhi Police, wherein “arrests of some Hindu youth had led to a degree of resentment among the Hindu community” and therefore, subordinate officers should take due care and precaution while arresting any person.

Petitioners were aggrieved by the issuance of the respondent 4’s order to the investigating officers and teams while the investigation pertaining to the carnage that took place in North East Delhi was still underway.

Indian Express had reported the said order by an Article titled —

‘RESENTMENT IN HINDUS ON ARRESTS, TAKE CARE: SPECIAL CP TO PROBE TEAMS’ on 15-07-2020.

Article pertained to the ongoing investigation, arrests and prosecution by the Delhi Police in cases relating to the carnage in North East Delhi and inter-alia reports that order dated 08-07-2020 addressed to subordinate officers heading probe teams and signed by respondent 4 cites an “intelligence input” about the riot-related arrests of “some Hindu youth from Chand Bagh and Khajuri Khas areas of Northeast Delhi” and goes on to state that arrests of “some Hindu youth” has led to a “degree of resentment among the Hindu community”.

The Order proceeds to direct that “due care and precaution” must be taken while making such arrests.

Adding to the above, it states that “community representatives are alleging that these arrests are made without any evidence and are even insinuating that such arrests are being made for some personal reasons.

The order goes on to name two Muslim men and states: “In the same area, resentment among Hindu community is also reported for alleged police inaction” against the two, “who are alleged to have been involved in mobilizing members of the Muslim community during Delhi riots and anti-CAA protests”.

It has also been stated that direct message has been conveyed to the subordinate officer that due care be taken in case of arresting the Hindu People and no precaution may be taken while arresting the Muslim people.

High court while parting with the decision made it clear that the IOs of the cases shall be dealing in accordance with the law and shall not take into consideration instructions vide order dated 08-07-2020, whereby it was stated that the evidences must be discussed with Special PPs assigned to each case

While issuing any instructions especially in such type of situation, the respondents shall take due care, however, in any eventuality, instructions may be issued within the powers mentioned under Section 36 CrPC.

Bench also noted that the electronic/print media has published some news which was against the letter and spirit of the Order dated 08-07-2020 issued by respondent 4.

Further, the Court also noted that 535 Hindus and 513 Muslims have been charge-sheeted in all cases. Thus, no prejudice has been caused pursuant to letter dated 08.07.2020

Hence, the Court suggested that media being the fourth pillar of democracy, news should be clear after verifying the facts so that no prejudice is caused to anyone or hatred is spread among communities in this country.

Investigating authorities must not create any bias on the basis of any instruction issued by the senior officers which are not recognized under any law.

In view of the above petition was disposed of. [Sahil Parvez v. GNCTD, 2020 SCC OnLine Del 971, decided on 07-08-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., granted bail to an accused involved in the Delhi-Riots in view of the principles of bail.

Applicant accused for offences under Sections 147, 148, 149, 427 and 436 of the Penal Code, 1860. Applicant has been in judicial custody since 03-04-2020 till date.

By the present application, bail has been sought.

An FIR was registered in February, wherein according to the police, a mob engaged in rioting and destruction of property in certain areas of North-East Delhi during which the property of Mohd. Shanawaz  was burnt down, whereupon he file a complaint around 10 days after the incident.

State alleged that the applicant was one of the persons involved in arson and rioting as stated above and the same is the reason for him being in judicial custody.

4 more cases have been listed wherein the applicant was implicated and all the cases arose from the episodes of rioting that happened in North-East Delhi in February 2020.

While opposing the bail, Amit Prasad, SPP and Tarang Srivastava, APP submitted that the applicant’s identity and presence stands confirmed by the snapshot/video-graphs of the CCTV footage from Rajdhani Public School as well as from the applicant’s own cellphone.

Applicant’s CDRs also confirmed his location at the scene of the crime at the relevant time; that the complainant’s statements also point to the involvement of the applicant; and that in his statement Ct. Vikas has in fact identified the applicant.

“Court considered the effect of Pre-trial detention has on an accused, especially on his right to brief and consult his lawyers and to prepare his defence, in order to afford to the accused a real and not merely chimerical right to fair trial, as guaranteed under Article 21 of the Constitution.”

Hence, in view of the above and applying the law and principles of bail granted regular bail subject to the following conditions:

  • Personal Bond shall be furnished of Rs 50,000 with two sureties.
  • Applicant shall not leave the National Capital Region without Court’s permission.
  • Applicant shall present himself on every alternate Saturday between 11 am and 11:30 am before the Investigating Officer.
  • Applicant shall furnish to the Investigating Officer/SHO a cellphone number on which the applicant may be contacted at any time.
  • If the applicant has a passport, he shall surrender the same to the Trial Court.
  • Applicant shall not contact, nor visit, nor offer any inducement, threat or promise to the first informant/complainant or to any of the prosecution witnesses.

In view of the above, application was disposed of. [Mohd. Anwar v. State of (NCT) Delhi, 2020 SCC OnLine Del 900, decided on 04-08-2020]

Case BriefsSupreme Court

Supreme Court: In a relief to journalist Vinod Dua, the 3-judge bench of  U U Lalit, M M Shantanagoudar and Vineet Saran, JJ, in a special hearing on Sunday restrained the Himachal Pradesh police from arresting him till July 6 in a sedition case lodged against him in the state over his Youtube show. The Court said that Dua will have to join the investigation and there shall be no stay on the ongoing probe undertaken by the Himachal Pradesh police. It also issued notices to the Centre and the state government and sought their responses within two weeks.

Here’ what the Court directed:

(a) Pending further orders, the petitioner shall not be arrested in connection with the present crime;

(b) However, the petitioner in terms of the offer made by him in his communication dated 12.06.2020, shall extend full cooperation through Video Conferencing or Online mode; and

(c) The Himachal Pradesh Police shall be entitled to carry on the investigation including interrogation of the petitioner at his residence after giving him prior notice of 24 hours and complying with the Social Distancing norms prescribed during Covid-19 Pandemic.

The Court further directed that the affidavit in reply filed on behalf of the State shall indicate the steps taken during investigation and a complete Status Report shall be filed before the next date of hearing.

“The concerned Investigating Officer shall remain personally present in case the open Court hearing is resumed by this Court or shall be available in case the proceedings are taken up through Video Conferencing mode.”

Senior advocate Vikas Singh, appearing for Dua, not only sought staying of the FIR rather demanded its quashing, saying the fundamental right of freedom of speech and expression of the journalist has been taken away by filing of the sedition case.

” if such charges are slapped against individuals then many of them may fall within the ambit of sedition charges.”

He said that petitioner is willing to show the video clip of the show to the court.

Granting interim relief, the bench said that it was not going into the details of the matter and will also not stay the probe.

Solicitor General Tushar Mehta, appearing for the Centre and the state government, accepted the notice and said he would file the reply in two weeks.

The Delhi High Court had earlier stayed an investigation into another case against Dua in connection with his show on YouTube. The police in Shimla had summoned him for questioning over a sedition complaint by a local BJP leader. Like the complaint lodged in the national capital, the FIR registered against the senior journalist in Shimla is also over his YouTube show on communal riots in Delhi earlier this year. According to the complaint, he had accused Prime Minister Narendra Modi of using “deaths and terror attacks” to get votes.

Dua has been charged under sections 124A (sedition), 268 (public nuisance), 501 (printing matter known to be defamatory) and 505 (statements conducive to public mischief) on the basis of a complaint last month by BJP’s Mahasu unit president Ajay Shyam.

On Thursday, Dua was sent a notice asking him to appear before the police in Shimla. Himachal Pradesh police personnel had arrived at his Delhi home on Friday morning to serve the notice. In his reply to the notice, Dua said he cannot visit Kumarsain police station because of his health, age and the COVID-19 protocol for travel and quarantine.

BJP leader Ajay Shyam had complained that Dua made bizarre allegations on his 15-minute YouTube show on March 30. The BJP leader alleged that Dua had instigated violence against the government and the prime minister by spreading false and malicious news.

On Wednesday, the Delhi High Court had stayed till June 23 an investigation into a similar case filed by BJP spokesperson Naveen Kumar.

The court had said there was an unexplained delay of nearly three months in filing the complaint.

[Vinod Dua v. Union of India, Writ Petition (Criminal) No.154/2020, order dated 14.062020]

(With inputs from PTI)

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., stayed the investigation against the television anchor and journalist Vinod Dua, alleged for spreading rumours and misinformation about the sensitive issue of Delhi Riots and causing hatred and ill-will between the different communities through his web cast on You Tube.

Who filed the present petition?

The petition was filed by Vinod Dua — Journalist and Television Anchor praying for quashing of an FIR registered under Sections 290/505/505(2) of the Penal Code, 1860. Petitioner sought investigation into the said registration of the FIR, as also for violation of his fundamental rights.

Genesis of the matter

Petitioner has a webcast on HW News Network on the YouTube Platform named “The Vinod Dua Show”.

Petitioner’s Stand

Senior Counsel, Vikas Singh submitted that the webcast was made on 11.03.2020 and ran for approximately 12 minutes, comprising two parts, each addressing a different current affairs issue. About 08 minutes of the webcast was in relation to the politics of government formation in the State of Madhya Pradesh in the context of some recent happenings.

As per the allegations contained in FIR, the above mentioned part of the webcast is not subject matter of the FIR.

Second part of about 4 minutes was in relation to the riots that happened in the North-East part of Delhi in February, 2020 and the complainant’s grievance appears to be with what was said in relation to the riots; and that was the subject matter of the complaint made and the FIR registered against the petitioner.

Petitioner’s Counsel relied on the following Supreme Court Judgments:

FIR

FIR records that the petitioner is spreading rumours and misinformation about the sensitive issue of Delhi Riots, which are resulting into causing hatred and ill-will between the different communities.

Respondent’s Stand

Counsel, Piyush Singhal on behalf of respondent 1 submitted that the notice has been issued to YouTube and petitioner has so far not even called for investigation.

Respondent 2’s counsel’s Anil Soni, Ajay Digpaul and Satya Ranjan Swain argued against granting interim relief to the petitioner on the following basis:

  • ingredients of Section 505(2) IPC are made-out on the basis of the allegations in the complaint and in the FIR
  • narration made in the offending webcast to the effect that Delhi Police should issue a fact-sheet indicating as to how many people from the minority community were picked-up and arrested; from where; in what condition and under what threat, amounts to propagating alarming news with intent to create or promote enmity, hatred or ill-will between classes, which is an offence punishable under Section 505(2), and which is both cognizable and non-bailable;
  • What is stated in the offending narration is merely the petitioner’s ‘opinion’ and not based on any ‘fact’, and that only rumour has been fostered to create enmity;
  • there is no legal basis or precedent for staying investigation or proceedings in an FIR

On Prima Facie view, following aspects emerge:

  • Substantial unexplained delay in filing of the complaint and registration of the FIR: Delay of almost 3 months
  • Petitioner learned about the registration of FIR through social media
  • what the complainant alleges was said in the webcast, is not what appears in the transcript of the webcast ; and to that extent no cognizable offence is disclosed on the basis of the material cited by the complainant warranting registration of an FIR
  • there is no allegation that any adverse consequences, in terms of enmity, hatred or ill-will, much less any violence or breach of peace, occurred as a consequence of the webcast
  • ingredients and gravamen of the offence under section 505(2) do not seem to be made-out as required per Manzar Sayeed Khan Judgment.

Thus, it prima facie appears that the registration of the FIR requires to be examined on the touchstone of the law.

Though petitioner has already been granted an interim protection by Additional Sessions Judge, this Court is of the view that further investigation or proceedings pursuant to the FIR would cause unwarranted and unjustified harassment to the petitioner.

Investigation in the matter arising from the subject FIR is stayed, till the next date of hearing.

Matter to be listed on 23-07-2020. [Vinod Dua v. State (Govt. of NCT of Delhi), 2020 SCC OnLine Del 644 , decided on 10-06-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bhakru, J., restrains the Delhi Police officials to issue any such statement or circulating information regarding allegations and evidence collected against the petitioner.

Petitioner alleged that Delhi Police has been selectively leaking certain information regarding the allegations made against the petitioner and the evidence allegedly collected against her.

It has been added by the petitioner that the said information being leaked is selective and misleading.

Petitioners Advocate contended that the Crime Branch has been leaking out selective information and evidence to persons from the media. 

Misleading information about the petitioner could likely to place the petitioner and her family members at risk.

Bench directed the DCP of the Crime Branch to file a personal affidavit affirming whether any such information as is mentioned above has been circulated by the officials to third persons, journalists or on social media.

Thus, in the meantime respondent is restrained from issuing any such statement or circulating information regarding allegations and evidence allegedly collected against the petitioner or other accused to any person including to the media or on social media.

Matter to be listed on 09-07-2020.[Devangana Kalita v. Delhi Police, 2020 SCC OnLine Del 639 , decided on 10-06-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a bail application of a person alleged to have been involved in burning the shop during the Delhi Riots, stated that:

“..ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail, however here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked-up only two.”

What transpired the bail application?

Present bail application has been filed by a person who has been taken into custody under Sections 147, 148, 149, 427 and 436 of Penal Code, 1860, though he sought bail on the grounds that neither has he been named in the FIR nor is there any allegation in the FIR nor any other material collected during investigation which would have identified him as one of the perpetrators in the offences alleged.

Supplementary Statement of Complainant

The first statement of the complainant has not been filed on record. Though APP submitted that the same has been extracted in-extenso in the FIR itself.

Senior Counsel, Rebecca John — for the applicant

Submissions:

  • Complainant’s supplementary statement on which the State sought to rely did not in any manner identify or connect the applicant to the alleged offences.
  • No test identification parade was conducted of the applicant to get the complainant to identify him
  • Applicant is a resides 15-minutes away from the complainant’s shop; and therefore the applicant’s presence in the vicinity of the shop cannot be assumed, unless there is evidence to that effect, which there isn’t.

Another point that is to be taken note of is that the co-accused with the applicant has already been admitted to bail by Additional Sessions Judge.

APP, Hirein Sharma for the State — Opposing Bail

While opposing the bail he submitted that applicant had been identified by complainant; Constable Vikas and the CCTV footage of Rajdhani School also identifies the applicant — these hold a sufficient basis to hold him in judicial custody. Overall there were around 250 to 300 rioters in the area at the relevant time.

Complainant’s supplementary statement

Complainant only submitted that in the video and photos shown to him in the police officer’s cellphone, he had identified 2 persons who set fire to his shop and, if confronted, he will be able to identify other persons who were present.

According to the State’s status report dated 23rd may, 2020, no footage of the incident is available and the cameras installed by PWD in various parts of the area are still awaited.

Ct. Vikas in his statement submitted two names including the applicant’s name.

It is extremely important to note however, that in the complainant’s statement upon which the FIR was recorded, the complainant says that when the rioters vandalised his shop, he tele- phoned the police but the police telephones were going busy ; and that therefore he ran away to save his life. In the teeth of this statement of the complainant that there was no police help on hand, Ct. Vikas claims that he was present at the scene of the offence and in- ter-alia saw the applicant commit the offences.

Now another point with regard to CCTV footage that is to be noted is that the Rajdhani School and applicant’s shop are at a 400 meters distance with a 5 minute walk but on 2 different sides of a turn in the road. Therefore, it appears incredible that camera/s installed in the school would be able to ‘see’ the complainant’s shop.

Additional Status report of the State says that:

“…. Granting of bail at this early stage may send an ad- verse message in the society and such crimes should not be allowed to happen in the national capital. ….”.

(Emphasis supplied)

Decision of the Bench

“Prison is primarily for punishing convicts; not fo detaining undertrials in order to send any ‘message’ to society.”

Further the Court observed that remit of the Court is to dispense justice in accordance with law, not to send messages to society.

It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system.

In regard to the present matter, Court cannot but notice that the offences under Sections 147/148/149 IPC arise in the context of an ‘unlawful assembly’, which Section 141 IPC defines as an assembly of 5 or more persons acting with unlawful purposes as defined in that provision ; while in the present case only 2 persons appear to have been charged.

On perusal of the above, Court admits the applicant to regular bail on following conditions:

  • Rs 50,000 Personal Bond; 2 sureties of the like amount from blood-relatives
  • Cannot leave NCR without Court’s permission
  • Shall present himself on every alternate Wednesday between 11 am and 11.30 am before the investigation officer.
  • Passport to be surrendered
  • applicant shall not contact nor visit nor threaten nor offer any inducement to the first informant/complainant or any of the prosecution witnesses. The applicant shall not tamper with evidence.

Court added to its observation that,

In this peculiar circumstance, this court was compelled to sift the evidence only prima-facie and limited to cursorily assessing how the police have identified the applicant from that large assembly of persons.

In view of the above discussion, bail application is allowed. [Firoz Khan v. State (NCT of Delhi), Bail Application No. 945 of 2020, decided on 29-05-2020]

Hot Off The PressNews

Supreme Court: A bench headed by CJ SA Bobde has directed Delhi High Court to hear on Friday the PIL filed by Delhi violence survivors seeking registration of FIR against political leaders over their hate speeches, which allegedly led to the riots in the national capital. The Court also directed the High Court to hear on Friday other connected matter on the issue, which was adjourned till April, as an adjournment of the matters for a month was not justifiable and asked it to finish hearing in an expeditious manner.

Taking up the High Court, CJI Bobde said,

“Their prayer to hear the matter on time is justified. In riots, violence cannot be curbed by courts. But just because there is no violence it does not mean that courts can give such long adjournments.”

The Court also sought the names of political leaders who could talk to people to bring peace in the region. The top court also slated to hear on Friday the matter related to the speech given by petitioner Harsh Mander, in which he allegedly said that he doesn’t have faith in the judiciary, and sought a transcript of the video of the incident.

Solicitor General Tushar Mehta mentioned the alleged video of Mander saying he is seen to have called on the people of India to streets for “real justice” and expressed no faith in the courts. Stating that he will only hear directly affected party as of now, CJI said,

“If this is what he (Mander) feels about the court then we have to decide how to deal…,”

Advocate Karuna Nandy, appearing for Mander, said that his client did not make such a statement.

Senior advocate Colin Gonsalves, who is representing the riot survivors, said that local BJP leader Kapil Mishra had in January made similar statements but no police action was taken against him. Gonsalves said that while the protests caused the disruption, no violence took place, and claimed that Mishra’s statement led to the violence as “Goli Maaro” slogans were raised by leaders.

The court asked Tushar Mehta if the situation was now conducive for filing FIRs, to which he responded saying that registration of FIRs was an exclusive prerogative of the police and added that law enforcement authorities have to take a call on the matter. Mehta said that so far, 468 FIRs have been registered in connection with the violence.

“There are speeches from both sides and if we start registering FIRs against the leaders of the communities, things may aggravate. We leave it to the authorities. The government has not said it will not file FIRs, but that it will be done when time is conducive,”

CJI Bobde said that the bench has some experience of riots adding that sometimes when leaders are arrested, the riots flare-up.

“You know what happened in the Bombay riots… When the Shaka Pramukhs were arrested and locked up, the riots flared up. Bombay riots were worse than this,”

This comes after at least 47 people including IB officer Ankit Sharma and Police Head Constable Rattan Lal died while around 200 people sustained serious injuries in the violence that raged for three days in north-east Delhi last week.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A bench headed by CJ SA Bobde has agreed to hear on March 4 a plea seeking immediate registration of FIR against BJP leaders Kapil Mishra, Anurag Thakur and others for their alleged “hate speech”, that allegedly led to the violence in North-East Delhi. The petition was filed by a group of Delhi violence survivors.

The bench posted the matter for hearing on Wednesday after senior advocate Colin Gonsalves appearing for the survivors told the apex court that Delhi High Court had last week adjourned the issue for six weeks whereas people are dying every day. Gonsalves said that it is an urgent issue and added that the top court should hear the matter today or tomorrow.

The Chief Justice said that he “wished for peace” but added that the court cannot give preventive relief.

“We are not saying people should die. That kind of pressure we are not equipped to handle. We cannot stop things from happening. We cannot give preventive reliefs. We feel a kind of pressure on us… We can only deal with the situation after it occurs, the kind of pressure on us, we can’t handle that… it’s like the court is responsible,”

He further added,

“We read newspapers, we know the kind of comments that are made. Courts come on to the scene after the thing is done and courts have not been able to prevent such a thing. We wish peace…,”

The plea filed by a group of 10 Delhi violence survivors sought an immediate FIR against Kapil Mishra, Anurag Thakur, Parvesh Verma and Abhay Verma who allegedly “indulged in hate speech, rioting, murder and arson”. It sought the constitution of a Special Investigation Team (SIT) with officers from outside Delhi to probe violence and call in the army to maintain law and order in the national capital.
The plea further sought an inquiry committee headed by a retired judge to probe police persons involved in the violence and exemplary compensation to all victims. The petitioners also sought postmortem reports to be released immediately to the families of victims. It also sought a direction to the government and police to make public the full
list of persons detained by police and paramilitary and to preserve all CCTV footage of violence-affected areas.

At least 46 people lost their lives and more than 200 others sustained serious injuries in the violence that rocked North-East Delhi last week.

(Source: ANI)

Hot Off The PressNews

As reported by ANI, Lieutenant Governor of Delhi has appointed SG Tushar Mehta, Addl. solicitor General  MK Acharya and two other Advocates to represent Delhi Police in regard to the recent violence and riots that occurred in North-East Delhi.

Delhi Police has registered 18 FIRs and 106 people have been arrested for creating violence.

Also read:

[Delhi Violence] | Del HC | “We cannot let another 1984 happen in this country; Not under the watch of this Court”; Ensure safe passage for bodies of victims who died in riots

Del HC | [Delhi Riots] [Midnight Hearing] Delhi Police directed to ensure safe passage for injured victims & immediate emergency treatment at govt. hospitals


[Source: ANI]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of S. Muralidhar and Anup Jairam Bhambhani, JJ., held a special sitting on orders being given by the Senior Most Judge –Justice G.S. Sistani with regard to wounded victims not being able to be removed from AI Hind Hospital for treatment at GTB Hospital.

AI Hind Hospital is a fairly small hospital and lacks facilities for treating the grievously wounded persons.

Advocate Suroor Mander had approached the Court and asked for a safe passage to be provided for them from the said hospital.

Bench being concerned with the safety of the injured people that require medical attention at the nearest government hospitals directed the Delhi police to ensure the safe passage for the ambulance by deploying all the resources.

Court asked for a status report including the information of the injured victims and treatment offered to be laced before them today when the matter will be taken up at 2.15 PM, i.e. 26-02-2020.

The Court accordingly directs Delhi Police to ensure such safe passage by deploying all the resources at its command and on the strength of this order and to ensure that apart from the safe passage, the injured victims receive immediate emergency treatment, if not at the GTB Hospital, then at the LNJP Hospital or Maulana Azad or any other government hospital.

[Rahul Roy v. Govt. (NCT of Delhi), Order dt. 26-02-2020]