23 March 2023 12:18 PM GMT
The Delhi High Court on Thursday reserved order in the revision petition filed by Delhi Police against the trial court order discharging Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in the 2019 Jamia violence case.Justice Swarana Kanta Sharma reserved the order after hearing Additional Solicitor General Sanjay Jain and the lawyers representing the respondents who...
The Delhi High Court on Thursday reserved order in the revision petition filed by Delhi Police against the trial court order discharging Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in the 2019 Jamia violence case.
Justice Swarana Kanta Sharma reserved the order after hearing Additional Solicitor General Sanjay Jain and the lawyers representing the respondents who were discharged.
ASG Jain submitted that the trial court “overstepped its jurisdiction” in passing “disparaging and gravely prejudicial observations” against the probe and investigative agency and said same ought to be expunged from the record.
It was also submitted that the trial court, at the stage of framing of charges, cannot conduct a mini-trial by determining the credibility of the evidence.
At the outset, the court asked Jain:
“What they said, when I was going through their written submissions, they say this person(s) was merely standing there. The trial court judge has basically said you couldn't bring anything on record for court to believe that these persons were part of crowd who committed offence. They also raised question that when there were so many people, why you only picked up a few?“
Responding to court’s query, Jain said that there are ten video clips available with the prosecution, which were also submitted to the trial court and "reveal that six of the discharged accused persons are seen indulging in acts as mentioned in chargesheet."
Jain also submitted that the video clips were filed along with the second supplementary chargesheet which was part of the record before the trial court.
On the other hand, Senior Advocate Rebecca John appearing for Safoora Zargar questioned the manner of her identification by police. She submitted that the person who was identified as Zargar from a video clip had a “face cover”, adding that no reason was given by the prosecution for concluding that it was her.
“The person they claim is me which I contest is in clip 9. At the very outset, they have to cross the threshold as far as identification is concerned. Because person seen in clip 9 has a face cover, assuming it's a she. How can they assume it's me? They are not giving me any feedback as to why they have come to that conclusion,” John said.
She added: “Till the time my identity isn't confirmed, my role has to be disconnected.”
Stating that there is an inconsistency in the FIR and subsequent chargesheets, John further submitted that Zargar was neither named in the first chargesheet, nor any role was attributed to her.
“For the first time, I am named as an accused in September 2021, for an incident that happened in 2019… They have not stated on what basis they were able to identify a person whose face was covered with cloth. It's my argument that somewhere you've to say how did you identify this person. You can't make out who that person is,” she said.
John added: “It doesn't behove an investigating agency like Delhi police to place inadmissible evidence before court.”
Referring to the statements of some police officers including an ASI, John said that neither of them identified Zargar.
“As far as statements of co-accused are concerned....what was shown to them is clip 1 and 3. Some of them say i am either in 1 or in 3.1 am neither in 1 nor in 3,” she said.
As John handed over certain photographs to the court, she contended:
“This requires some magic to discern, assuming it's a she. It could be anybody. Therefore, the first principle of criminal law is that when your case is that I was present at spot, you've to prove my presence. Aap photos ke basis par identity karwa rahe hai from persons who weren't there on spot. We should know what is that process which gave him the supernatural powers which made him to go behind the veil and say this is Safoora Zargar and not someone else.”
Concluding her submissions, John said that it is not a case of “grave suspicion” but “where two views are possible.”
“It could be me or someone else. I can understand their grievance with respect to some observations which were made but the issue of my role has been considered by trial court… You have no other independent evidence to support ... my presence or any aspect of criminality on my part,” she said.
Advocate MR Shamshad appearing for Mohd. Qasim, Mahmood Anwar, Shahzar Raza Khan and Umair Ahmed submitted that the accused were merely bystanders and that the trial court was right in discharging them in the matter.
He also submitted that their call data record (CDR) showing their location at the spot was of no relevance as they were the students of the varsity at the relevant time.
“I am not shying away from additional chargesheets. It's a matter of investigation....I can't say it is illegal because there is no bar. But ultimately, the position of the accused has to be seen,” he said.
Shamshad added: “Ultimately we are students who are protesting. For this you'll go to this extent?? That's my case.”
Appearing for Sharjeel Imam, Advocate Talib Mustafa submitted that there is no video clip or any single statement of witness against Imam in any of the chargesheets.
“What remains is a disclosure statement against me which cannot be sufficient for framing of charges,” he said. Imam is also represented by Advocate Ahmed Ibrahim.
The court also heard Advocate Sowjhanya Shankaran who appeared for Asif Iqbal Tanha.
On February 4, the trial court had discharged Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar, Mohd. Abuzar, Umair Ahmed, Mohd. Shoaib, Mahmood Anwar, Mohd. Qasim, Mohd. Bilal Nadeem, Shahzar Raza Khan and Chanda Yadav in the case. However, it had found sufficient evidence to frame charges against Mohd. Ilyas.
Days thereafter, the police approached the High Court challenging the discharge. While issuing notice in the petition, Justice Sharma had said that the trial court’s observations against the investigating agency will neither affect further investigation nor the trial of any accused person.
The case is connected to the incidents of violence at Jamia Milia Islamia University in December, 2019. The FIR alleges offences of rioting and unlawful assembly - sections 143, 147, 148, 149, 186, 353, 332, 333, 308, 427, 435, 323, 341, 120B and 34 of IPC were invoked in the case.
The police had filed a chargesheet against Mohd Ilyas on April 21, 2020. A second supplementary chargesheet was then filed against 11 other accused persons, who have been discharged in the matter.
A third supplementary chargesheet was also filed recently on February 1, 2023, during continuation of arguments on charge. The prosecution tried to establish that the witnesses had identified the accused persons on the basis of some photographs.
The trial court in its order observed that Delhi Police failed to adduce fresh evidence and rather sought to present old facts in the garb of “further investigation” by filing another supplementary chargesheet.
It further said that there were no eyewitnesses who could substantiate the police’s version that the accused persons were in any way involved in the commission of the offences.
In the revision petition, Delhi Police argued that trial Court was swayed by “emotional and sentimental feelings” while discharging the accused. The court passed gravely prejudicial and adverse remarks against the prosecuting agency and the investigation, it has said.
Contending that trial court held a "min-trial" at the stage of framing charges, the police also said that the trial ought to have only merely sifted through the evidence to find out whether or not there was sufficient ground for proceeding against the accused.
Title: State v. Mohd. Qasim & Ors.