Case BriefsHigh Courts

Delhi High Court: In an appeal under Section 21(4) of the National Investigation Agency Act, 2008 (‘NIA Act’) read with Section 43-D(5) of the Unlawful Activities Prevention Act, 1967 (‘UAPA’), seeking setting aside of impugned order passed by Sessions Judge, whereby Umar Khalid’s bail application was dismissed, the division bench of Siddharth Mridul and Rajnish Bhatnagar, JJ. has been observed that the allegations against Umar Khalid are “prima facie true” and hence, the embargo created by Section 43D(5) of UAPA applies squarely regarding the consideration of grant of bail to him. Thus, his application seeking regular bail was rejected.

In this case, the First Information Report (FIR) came to be registered by the Crime Branch on 06.03.2020, alleging that the riots which took place in Delhi in 2020 were the result of a preplanned conspiracy between Umar Khalid and his associates from different organisations, who have planned and carried out the said conspiracy which culminated in the said Riots. It has been alleged that Umar Khalid had made provocative speeches at different locations and made an appeal to people to come out and block the streets, during the visit of US President Donald Trump, to publicize, at an international level, that minorities were being targeted and discriminated against in India.

The Court referred to the decision in Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, wherein the Court laid down the factors to be borne in mind while considering a bail application. Further, the Court observed that when it comes to offences punishable under special enactments, such as the UAPA, 1967, something more is required to be kept in mind in view of the special provisions contained therein.

The Court referred to the decision in NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, and viewed that as the charge sheet has been filed under offence punishable under Section 16, 17, 18 of the UAPA, which are a part of Chapter IV, thus the present case will be covered by stringent conditions for grant of bail in sub-section (5) of Section 43D. Further, by virtue of the proviso to subsection (5), the Court must be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true, which means that the materials/evidence collated by the investigating agency in reference to the accusation in the FIR, must prevail until contradicted or disproved by other evidence, and on the face of it, shows the involvement of such accused in the commission of the offence.

The Court viewed that a charge-sheet is merely an expression of the opinion of the investigating officer and as such besides the averment made in the charge-sheet, the material available in totality must be considered while granting or rejecting bail. However, in the present case, there are two-fold issues to be decided that whether the impugned order needs any interjection in view of the appeal filed by Umar Khalid under section 21(4) of the NIA Act and, as to whether he in view of the material on records, is entitled to the regular bail.

The Court agreed with the findings of the Sessions Judge and observed that the objection of Umar Khalid that a case is not made-out under UAPA, was based on assessing the degree of sufficiency and credibility of evidence, not the absence of its existence, but the extent of its applicability; but such objection is outside the scope and ambit of Section 43D (5) of the UAPA.F urther, after the examination of charge sheet and taking into consideration the fact that Umar Khalid was in constant touch with other co-accused persons, including Sharjeel Imam, who is allegedly the head of the conspiracy; the Court viewed that it is difficult to form an opinion that there are no reasonable grounds for believing that the accusation against him is prima facie not proved.

Thus, the Court observed that its prima facie appears to be a premeditated conspiracy for causing disruptive chakka-jam and preplanned protests at different planned sites in Delhi, which was engineered to escalate to confrontational chakka-jam and incitement to violence and culminate in riots in natural course. Further, the protest planned was “not a typical protest” normal in political culture or democracy, but one far more destructive and injurious, geared towards extremely grave consequences. Thus, as per the pre-meditated plan there was an intentional blocking of roads to cause inconvenience and disruption of the essential services to the life of community residing in North-East Delhi, creating thereby panic and an alarming sense of insecurity. The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such premediated plan and as such the same would prima facie be covered by the definition of ‘terrorist act.

It was also observed that different witnesses have stated the role of Umar Khalid about the open discussion on violence, riots, finance and weapons. Further, the weapons used, the manner of attack and the resultant deaths caused indicate that the said acts were pre-planned, as the acts which threaten the unity and integrity of India and cause friction in communal harmony and creates terror in any section of the people, by disturbing the social fabric are terrorist acts.

It was also observed that the name of Umar Khalid finds recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots. Further, he was a member of the WhatsApp group of Muslim students of Jawaharlal Nehru University and participated in various meetings at Jantar Mantar, Shaheen Bagh, etc. Moreover, the call detail records depict that there had been many calls that post riots happened amongst Umar Khalid and other co-accused.

Moreover, it was viewed that the cumulative statement of the witnesses indicates the presence and active involvement of Umar Khalid in the protests, engineered against the Citizenship Amendment Act, that resulted into violent riots in February 2020, which began by firstly choking public roads, then violently and designedly attacking policemen and random members of the public, with firearms, acid bottles, stones etc., resulting in the loss of 53 precious lives and the destruction of property worth several Crores. Thus, the allegations against Umar Khalid are “prima facie true”.

[Umar Khalid v. State of National Capital Territory of Delhi, 2022 SCC OnLine Del 3423, decided on 18.10.2022]


Advocates who appeared in this case :

For the Appellant: Senior Advocate Trideep Pais;

Advocate Sanya Kumar;

Advocate Sahil Ghai;

Advocate Rakshanda Deka;

For the Respondent: Special Public Prosecutor Amit Prasad;

Advocate Ayodhya Prasad.

Case BriefsDistrict Court

   

Karkardooma Court, Delhi: In a bail application moved on behalf of applicant/accused Saleem Malik @ Munna under Section 437 Code of Criminal Procedure (CrPC) who was arrested under Section 147, 148, 149, 427, 423, 436, 120-B Penal Code, 1860 (IPC) for conspiracy of North-East Delhi riots as part of the CAA-NRC protests that took place on the same day when the then, US President Donald Trump visited India , Amitabh Rawat, J. denied bail to the applicant-accused as the statements of the witnesses show sufficient incriminating material against the present accused Saleem Malik.

Submission

Counsel for State submitted that in the present case, the bar of Section 43-D (5) UAPA for grant of bail would apply as prima facie allegations against the accused are true and the further embargo is created due to Section 437 (1) CrPC.

Observations

The Court noted that Section 437 CrPC places an additional condition before releasing a person on bail if there are reasonable grounds for believing that accused has been guilty of offence punishable with death or imprisonment for life and the present case also involves the applicability of Unlawful Activities (Prevention) Act. Thus, if the court is of the opinion on the perusal of the charge sheet that there are reasonable grounds for believing that the accusation against such person is prima facie true, then, as per this provision, accused shall not be released on bail.

Reliance was placed on National Investigating Agency v. Zahoor Ahmad Shah Watalli, (2019) 5 SCC 1, wherein it was observed that the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. For that, the totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.

Reliance was further placed on Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, wherein it was observed that the elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is.

Analysis

The Court opined that the present case pertains to a conspiracy for constituting a conspiracy, meeting of minds of two or more persons for doing an illegal act or any act by illegal means is the condition and it is not at all necessary that all the conspirators must know each and every detail of the conspiracy. It is also not necessary that every one of the conspirators must take active part in commission of each and every conspiratorial act. The existence of conspiracy and its object are normally deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy.

The Court observed that in the present case, as per the chargesheet, there was a premeditated conspiracy of the disruptive chakkajam and a preplanned protest at different planned sites in Delhi which was to escalate and incitement to violence and resulting in riots. There was intentional blocking of roads to cause inconvenience and to cause disruption of the essential services to the life of community residing in NorthEast Delhi, causing violence with various means. The weapons used, manner of attack and the destruction caused shows it to be preplanned. Acts which threaten the unity and integrity of India and causes friction in communal harmony and creates terror in any section of the people, by making them feel surrounded resulting in violence, is also a terrorist act.

Role of Saleem Malik

According to the statement of protected witness and as per the charge sheet, at the time of the riots, accused Saleem Malik was present in North East Delhi and was connected with accused persons namely Saleem Khan, Athar, Shadab and Suleman (Proclaimed Offender). He also took part in the conspiracy. It is not necessary that in a case of a conspiracy, every accused should play part in every aspect of the conspiracy.

Decision

Thus, in view of the perusal of the chargesheet, accompanying documents and the statements of all the witnesses whose veracity will be tested at the time of cross-examination sufficient incriminating material against the present accused Saleem Malik is shown, thus the Court held allegations against the accused Saleem Malik are prima facie true thereby denied him bail.

[State v. Tahir Hussain (Bail application of Saleem Malik), 2022 SCC OnLine Dis Crt (Del) 44, decided on 06-10-2022]


Advocates who appeared in this case:

For accused: Advocate Bilal Anwar Khan

For State: Special Public Prosecutor Amit Prasad


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsDistrict Court

   

Saket Court, Delhi: In an application filed seeking bail for Sharjeel Imam, (‘bail-applicant’) who is a JNU student alleged for making inflammatory speeches at Jamia during Anti CAA-NRC protests in 2019, Anuj Agrawal J., granted bail in a sedition case being covered u/s 436-A Criminal Procedure Code.

In an earlier bail application of the accused seeking regular bail, the Court observed

As far as allegations against applicant/accused for offences under section 143/147/148/149/186/353/332/333/307/308/427/435/323/341/120-B/34 IPC & 3/4 Prevention of Damage to Public Property Act & under section 25/27 Arms Act with aid of section 109 IPC are concerned, after going through the record, I am of the prima facie view that the evidence in support of the allegations (rioters got instigated by the speech dated 13.12.2019 of applicant/accused and thereafter they indulged in the acts of rioting, mischief, attacking the police party etc.), is scanty and sketchy.

Further, there is no evidence corroborating the version of prosecution that alleged rioters/co-accused were a part of the audience addressed by applicant/accused Sharjeel Imam on 13.12.2019.

The theory as propounded by investigating agency leaves gaping holes which leaves an incomplete picture unless the gaps are filled by resorting to surmises and conjectures or by essentially replying upon the disclosure statement of applicant/accused Sharjeel Iman and co-accused.

The Court noted that the said observations have not been set-aside by any Superior Court till date and as far as remaining offences u/s 124-A and 153-A Penal Code, 1860 (‘IPC’) are concerned, the prosecution for offence u/s 124-A IPC in all pending cases has already been directed to be kept in abeyance by Supreme Court in S.G. Vombatkare v. Union of India, W.P. (C) No. 682/2021 vide order dated 11-05-2022.

The Court further noted that as far as offence u/s 153-A IPC is concerned, it is not disputed that the alleged act of applicant/accused is punishable with maximum imprisonment up to three years as provided u/s 153-A (1) IPC and the applicant/accused has been in custody for more than 31 months, having been arrested on 17-02-2020 in the instant case.

The Court concluded that considering the submissions made at Bar, in view of the directions of Supreme Court in S.G. Vombatkare (supra) and keeping in view the earlier order dated 22.10.2021 of this Court, the case of applicant/accused is covered u/s 436-A CrPC and therefore instant application deserves to be allowed.

Thus, the Court admitted Sharjeel Imam to bail on furnishing personal bond in the sum of Rs. 30,000/- with one surety of like amount subject to the condition that he shall always remain available on a working mobile number and shall intimate the concerned IO about change of address, if any.

[Sharjeel Imam v. State, 2022 SCC OnLine Dis Crt (Del) 43, decided on 30-09-2022]


Advocates who appeared in this case:

Sh. Amit Prasad, Ld. Special PP, for the State through VC;

Sh. Talib Mustafa, Sh. Ahmad Ibrahim and Sh. Kartik Venu, Ld. Counsels, for the Applicant/Accused;

IO/Inspector Mantoo Singh in person.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Delhi High Court: After the Jawaharlal Nehru University Students Union and the Teachers Union approached the High Court seeking a direction for setting up COVID care facilities in the University Campus, as also a COVID response team, and certain Oxygen facilities inside the University Campus premises, Prathiba M. Singh, J has asked the Registrar of JNU to file a status report, as to the steps taken by the administration of the JNU for dealing with the COVID-19 pandemic situation in the JNU campus since 2020 and especially since 13th April, 2021.

Background

  • Around the second week of April, the Petitioners wrote a letter to the Registrar, highlighting the alarming situation due to COVID-19 on the JNU campus, seeking various steps to be taken for controlling the situation.
  • A notification was issued on 18th April, 2021, by the Deputy Registrar of the JNU constituting a COVID-10 task force and a COVID-19 response team in JNU.
  • On 18th April, 2021, another letter had again been sent by the Petitioners to the Registrar of JNU, stating the massive surge of the number of positive cases within the JNU campus premises and highlighting the need for urgent steps to be taken. The same was followed up with further letters on 19th April, 2021 to the Vice Chancellor, JNU, and on 23rd April, 2021 to the ADM, New Delhi, requesting immediate intervention for setting up COVID care facilities within the campus.
  • The Petitioners, thereafter, are stated to have contacted the SDM for, setting up of the isolation and quarantine facilities.
  • The petitioners had also requested the faculty of Centre for Social Medicine and Community Health, for drawing of plans for COVID care, which has submitted a proper proposal in this respect. Further, there is also a plan which has been devised by the School of Life Sciences, JNU, for producing Oxygen within the campus itself.
  • As pleaded, there were total of 74 cases around 18th April 2021 which has increased to 211 as on 7th May 2021.

Contentions

The petitioners had highlighted before the Court that the right to life and health of all the residents/occupants in the campus is under severe jeopardy. The petitioners had accused the JNU administration of being guilty of `dereliction of duty’.

They had argued that despite repeated letters to the authorities of the University, the Secretary of Ministry of Education, the Secretary of the University Grants Commission etc., no action has been taken for setting up of a COVID care facility within the campus premises. Further, repeated letters to the SDM of the area have also not evoked any response.

Order

“Considering the rigour of the current COVID-19 pandemic wave and the correspondence which has been placed on record, there is no doubt that the JNU administration ought to have reacted with swiftness and alacrity.”

Noticing that it has been almost a month, since the petitioners have been following up but the same has completely failed to evoke a response, the Court said,

“If this is true, this would constitute gross neglect by the JNU administration in a situation which is completely alarming. The University is bound to take care of the health of the students and teachers, and make available the facilities, to the extent possible, within the University campus, especially considering the prevalent shortages for hospital beds etc.”

The Court also too judicial notice of the fact that various organisations and institutions have gone out of their way, during the current pandemic, to make various facilities available to their employees and other stakeholders, in order to safeguard their health during the current surge of the COVID- 19 pandemic. It, hence, said that JNU ought not to be an exception in this regard.

It, hence, issued the following directions:

  1. The Registrar, JNU to immediately give instructions to the ld. counsel, and file a status report, as to what are the steps taken by the administration of the JNU in respect of the requests made and letters written by the Petitioners to the administration, for dealing with the COVID-19 pandemic situation in the JNU campus since 2020 and especially since 13th April, 2021.
  2. The Vice Chancellor/Registrar of JNU to also ascertain the necessity and feasibility in respect of creation of the COVID care facility in the JNU campus and file a status report thereof. The report shall also take into consideration the proposals given by the Centre for Social Medicine and Community Health (CSMCH) as also the proposal for inhouse production of oxygen, given by the School of Life Sciences. The authorities in JNU to consider if there is any modification required to the said proposals as has been suggested by the students and teachers associations. The modalities for creation of COVID care facility shall be mentioned in the report.
  3. The SDM/ADM of the concerned area to also place on record a status report, as to whether such a COVID care facility can be created at JNU, in accordance with the guidelines applicable, and if so indicating the manner in which the doctors and paramedics, as also nurses, would be made available for the said facility, and whether they would be tied up with any particular hospital, and if so, name the said hospital after obtaining its concurrence.
  4. Two meetings to be virtually convened by the Registrar of the Respondent University, chaired by the Vice Chancellor, one with the other internal administrative staff as also the concerned SDM/ADM of the area and another along with six representatives of the Students and the Teachers Union, as also the departments which have given the proposals, to work out the formalities and the protocols, in this respect.
  5. The status reports explaining the feasibility, modalities and timelines for setting up of a covid care centre, preferably with oxygenated beds, as directed, be emailed by both the JNU administration as also the ADM/SDM of the concerned area, is to be filed by 9 AM on 13th May 2021.

The Court will now hear the matter on May 13, 2021.

[Jawaharlal Nehru University Teachers Association v. Jawaharlal Nehru University, 2021 SCC OnLine Del 2019, order dated 11.05.2021]


For Petitioners: Advocates Abhik Chimni, Lakshay Garg & Shashwat Mehra,

For Respondents: Standing Counsel Monika Arora, with Advocate Shriram Tiwary and Standing Counsel Santosh Kumar Tripathi with Advocate Aditya P Khanna

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of V. Kameswar Rao, J. decided a contempt petition filed by Jawaharlal Nehru University seeking action against the respondent Students Union for disobeying Court’s order dated 9-8-2017 whereby Court directed restriction on any protest within 100 meters of the Administrative building.
According to the facts alleged by the University, the respondents disobeyed the said order of the Court and staged protests against compulsory attendance rule inside the Administrative building. They formed human chains, marched throughout the prohibited area, went all the way to VC’s residence, vandalised the area, held University officials under wrongful confinement, etc. The respondents submitted that the contempt petition was vindictive and vexatious. Further, that they believed in rule of law as a part of the basic structure; that they have a right to peaceful protest; that dissent in dialogue and peaceful demonstration were part of the expression of free speech.

The High Court held that the order mentioned hereinabove stood against the respondents till such time as it was set aside or varied, which wasn’t a case here. The Court observed it as a settled position of law that fundamental right under Article 19(1) does not enable any citizen to exercise the same in a manner which may encroach upon a similar right guaranteed to another citizen. Further, the respondents had a fundamental right of peaceful protest but with certain responsibilities towards fellow students/staff/visitors, etc. The Court observed that the respondents did not express any regret for violating the order. It was not a case of non-compliance by mistake, inadvertence or misunderstanding. In such circumstances, the Court held the respondents guilty of contempt and fined each respondent with Rs 2000. [Jawaharlal Nehru University v. Geeta Kumari,  2018 SCC OnLine Del 9601, decided on 03-07-2018]