New Delhi: The Delhi High Court on Tuesday set aside the trial court’s discharge of Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in the Jamia violence case of 2019 while charging them under rioting, unlawful assembly and other offence. While setting aside the trial court order of discharge, the High Court said, ‘the acts of violence and violent speech that instigate violence and endanger rule of law, damage public property and peace are not protected under the Indian Constitution’.
The trial court had discharged the accused Sharjeel Imam, Safoora Zargar, Asig Iqbal Tanha and eight others in the 2019 Jamia violence case. The High Court has set aside the said order. Justice Swarana Kanta Sharma in the judgement said, ‘Asserting one’s right to raise issues in a democratic set up is not a crime in India. Though protesting has constitutional protection through the right of freedom of speech and expression, it is essentially subject to peaceful assembly and peaceful association’. It is also subject to legal parameters relevant to protest and the right to peaceful assembly like all constitutional rights is subject to ‘reasonable limits’, Justice Sharma said.
The bench also said that the state can put reasonable restrictions and a protest cannot be allowed to endanger life and property. The bench said, ‘Thus, the State can restrict the rights including the right to protest by certain ways without violating the fundamental rights of individuals’. ‘A protest cannot be allowed to endanger others, damage property, restrict essential services and such a protest cannot receive constitutional protection. The acts of violence and violent speech that instigates violence and endangers rule of law, damage public property and peace are not protected under the Indian Constitution’, Justice Sharma held.
The High Court while setting aside the trial court order charged accused Mohd Qasim, Mahmood Anwar, Shahzar Raza Khan, Umair Ahmed, Mohd Bilal Nadeem, Sharjeel Imam, Chanda Yadav and Safoora Zargar for the commission of offences punishable under Sections 143/147/149/186/353/427 of Indian Penal Code (IPC) and Section 3 of Prevention of Damage to Public Property (PDPP) Act. ‘They have been discharged in other sections of law mentioned in the chargesheet since there is not enough material against them to implicate them under those sections of law’, the high court said. ‘Secondly, accused Mohd. Abuzar, Mohd. Shoaib and Asif Iqbal Tanha are charged for commission of offence punishable under Section 143 of IPC. They have been discharged under other sections of law mentioned in the chargesheet since there is not enough material against them to implicate them under those sections of law’, the judgement said.
In the judgement, the High court said that this court has tried to therefore, decide the present case in light of the constitutional and human rights of the individuals qua the offences alleged to have been committed by them and their grievance against their alleged false implication by alleged overzealous and mala fide police practices in this case. ‘Though the protesters in a democracy have every right to protest and freedom of expression and to protest against any government policy, however, at the same time the rights so exercised by a group of people being aggrieved by anything cannot infringe the right of others who want public peace and tranquillity as community in general and freedom from any disturbance, need for security from violence, security of the public property for which they pay taxes and their own property which they make by their own hard earned money, thus the protests are subject to non-infringement of the same and also non-infringement of law of the land’, the court said.
The decision of the court has to guarantee procedural protection to the respondents to ensure their fundamental constitutional right of free expression and ensure that they are not put to trial for no offences, the high court said in the judgement. ‘However, when there is prima facie evidence as in the present case from the statement and material collected and the electronic evidence, the Court has to recognize that adequate warning was given to the protesters from turning violent and that their assembly in view of the violence had been declared unlawful and their conscious decision to remain part of violent mob, which was pre-requisites to let the member make a conscious choice of disbursing and not be part of the violence’, Justice Sharma pointed out.
‘The circumstances surrounding the present incident which has been captured in the electronic evidence in the video clips and multiple statements of the witnesses who were present at the spot indicate that the protesters were clearly informed that the privilege of peaceful protest and protection guaranteed under Article 19 of Constitution of India would come to an end in case of persisting violence and the protesters indulging in violating the law under various sections of Indian Penal Code and other relevant provisions of law in force’, the High court observed. The bench said that this court is not expressing that peaceful protests are impermissible but questions the line crossed between the peaceful protest permissible under the law and duty of the law enforcement agency to ensure non violence and rule of law.
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On the point of framing of charge the high court said that at the stage of charge, while continuing to follow the rules laid down by the Honourable Apex Court, the totality of circumstances and the material on record has to be considered depending on facts of each case. ‘The fine points of such guidelines as laid down in the judicial precedents are clear which are designed to guard against mala fide prosecution based on insufficient, inadmissible, inadequate material on record at the stage of charge’, the high court observed. ‘True, at the stage of charge, the order cannot be based on one sided appraisal of the material of the competing interest. The method and extent to do so has been laid down in the judicial precedents’, the court said.
‘The Court is not open to testing admissibility or veracity of the witnesses at the stage of charge by oral cross-examination of such statements through oral arguments of the respondents. This is permissible only through cross-examination of the witnesses when they appear in Court at the relevant stage of trial’, the high court held. The High court said that to allow questioning of veracity of statement or to hold that the statements of all the witnesses examined by the prosecution under Section 161 of Cr.P.C are false will amount to allowing to prejudge whether the statements are false and inadmissible or information gathered and produced before the Court is of no consequence.
The High court also said that this court, while deciding the present case has not relied on the admissions and confessions of the respondents, though it was argued that they were voluntarily and freely made, how so ever incriminating they may be, as this Court has long read the Constitution and laws to not rely on confession made in the police custody. ‘The court has relied on material which has been discussed in detail and does not agree with learned Trial Court that only the confessional statements which are non-admissible in law were available on record against the present respondents’, it added. ‘Though the concern of the Court is with those who have been confined by law, the modern technology as in the present case has helped to bring evidence on record, prima facie to believe that there is strong suspicion against respondents regarding commission of offences as pointed out’, the court added.
‘The State has filed a revision petition seeking setting aside of the impugned order dated 04.02.2023 passed by Additional Sessions Judge Saket Courts, in the case title ‘State v. Mohd. Ilyas alias Illen’,’ it said. ‘The Trial Court had discharged the respondents and proceeded to frame charges only against accused Ilyas the case registered at Police Station Jamia Nagar for offences punishable under Sections 143/147/148//149/186/353/332/ 308/427/435/323/341/120B/34 of Indian Penal Code, 1860 (IPC) and Sections 3/4 of Prevention of Damage to Public Property Act, 1984 (PDPP Act)’, the court added.
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