To invoke Section 13 of the Unlawful Activities Prevention Act, 1967(UAPA) against Sharjeel Imam, student of Jawaharlal Nehru University(JNU), the Delhi police has cited a speech allegedly made by him calling for the rejection of the Constitution of India as a 'fascist document'.
The police had sought extension of time for probe, beyond the period of 90 days, by stating that Section 13 of the UAPA - which deals with the offence of 'unlawful activity' - has also been added in the FIR against him, which was initially registered for offences of sedition, promotion of communal disharmony etc.
In the application filed before the Trial Court on the 88th day of Imam's custody, the Additional Public Prosecutor(APP) stated :
"As per speech(of Imam) dated 13.12.2019, Constitution is worthy of rejection, being fascist document only to be used for taking benefit in court and wherever it may beneficial(sic)".
The application added that the "innuendo" of the statement was that "on all such occasion where the Constitution is not securing any benefit to a particular religious community, it is liable to be ignored and rejected".
The application further linked the statements against the Constitution to "unlawful activity" under UAPA by stating that they were equivalent to 'disrupting the sovereignty of India'.
As per Section 2(o) of the UAPA, any any action, whether by act or words, which, inter-alia, "disrupts or is intended to disrupt the sovereignty and territorial integrity of India" is an unlawful activity.
"India's sovereignty is secured by its Constitution and any attempt to generate disaffection towards the Constitution is equivalent to disrupting the sovereignty of India", the application read.
Thus, Imam's alleged statements against the Constitution were used to add Section 13 of UAPA, by linking them to disruption of sovereignty of India.
The addition of UAPA offence enabled police to seek further time of 90 days to submit charge-sheet, and to ensure that Imam will not get the benefit of default bail on account of the failure to file charge-sheet within 90 days of registration of FIR, which was originally with respect to IPC offences.
The application stated that a series of riots took place in Delhi after Imam's speech of December 13 and his role in the conspiracy needed to be verified.
It further stated that after his speech of January 16, many protest sites started emerging in city, roads were blocked and tents were erected to sit in to protest against CAA/NRC. Stating that these sites later on become the initiation of riots in Delhi in February, 2020, the police stressed that the "larger conspiracy" needed to be unearthed.
The application further stated that the lockdown affected the pace of investigation, and that there was need to interrogate friends of Imam, members of his Whatsapp group, persons who arranged money for printing the pamphlets etc. The reports of forensic examination of his mobile and laptop, and sanction under Section 196 CrPC and 45 of UAPA were awaited, the application added.
Imam was arrested on January 28 from Bihar's Jehanabad district in the case related to violent protests against the CAA near the Jamia Millia Islamia University in December last year.
The statutory period of 90 days from the arrest had concluded on April 27.
On April 25, the Roster Judge, Patiala House Courts, New Delhi, allowed the extension. On Friday, July 10, the Delhi High Court rejected Imam's challenge against that order, observing that there were "good and justifiable grounds" for extending the time to complete investigation.
The High Court rejected the argument of Imam's counsel, Senior Advocate Rebecca M John, that notice had to be served on the accused before hearing the application for extension.
"...the plea of Ms. John that an accused has a right to oppose the application / report moved by the APP is not sustainable", a bench of Justice V Kameswar Rao held, referring to precedents such as Syed Shahid Yousuf v. NIA, Sanjay Dutt vs. State (1994) 5 SCC 410) etc.
Before moving the application, the investigating officer had served a notice via Whatsapp to Imam's counsel on April 24. But the counsel said that unless the Court issues notice, she cannot appear in the case.
The HC held that failure to issue notice to the accused, or his non-production before the Court at the time of hearing of extension of application, was inconsequential as the accused has no right to oppose the application.
The HC also rejected Ms.John's submission that the filing of application on the 88th day was "mala-fide".
"This I say so because the addition of Section 13 of UAPA to the offences has not been contested. The UAPA provides for an extension of the period of investigation for a further period of 90 days, that is, totalling 180 days," the judge said.
The Court also refused to accept the argument that the mere reproduction of the reasons stated by the IO in the application moved by the APP indicated non-application of mind. The HC further held that the trial court had recorded sufficient satisfaction for extending time.