13 Feb 2023 6:42 AM GMT
The Delhi High Court on Monday said that trial court's observations in the order discharging Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in the 2019 Jamia violence case, will not affect the further investigation or trial of the remaining accused. Justice Swarana Kanta Sharma issued notice on the revision petition filed by the Delhi Police and listed the case for hearing...
The Delhi High Court on Monday said that trial court's observations in the order discharging Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in the 2019 Jamia violence case, will not affect the further investigation or trial of the remaining accused.
Justice Swarana Kanta Sharma issued notice on the revision petition filed by the Delhi Police and listed the case for hearing on March 16.
"Since further investigation will be carried out, observations made against the investigating agency will not affect either further investigation or trial of any accused," the court said after a detailed preliminary hearing.
The court has granted liberty to Delhi Police and respondents to file short written submissions and relevant case laws in the matter.
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.
#DelhiHighCourt to hear #DelhiPolice’s plea against discharge of #SharjeelImam, Safoora Zargar, Asif Iqbal Tanha and eight others in 2019 #Jamia violence case.Matter before Justice Swarana Kanta Sharma. pic.twitter.com/NUWWUixonS— Live Law (@LiveLawIndia) February 13, 2023
#DelhiHighCourt to hear #DelhiPolice’s plea against discharge of #SharjeelImam, Safoora Zargar, Asif Iqbal Tanha and eight others in 2019 #Jamia violence case.Matter before Justice Swarana Kanta Sharma. pic.twitter.com/NUWWUixonS
Arguments by ASG
Additional Solicitor General Sanjay Jain, appearing for Delhi Police, argued that third chargesheet in the case contained a detailed account of the investigation. "What emerges is that there is a registration of FIR. There have been main and three supplementary chargesheets. Last chargesheet is disregarded by trial court on the basis of reasoning which is misconceived in law," the ASG said.
Jain also said it is nobody's case that police was doing any re-investigation. "How can such a document be disregarded as per whims and fancies of the trial court, because of pre-conceived notions. Investigation is a dynamic process? It's common that investigation will go on for some time," he said.
Delhi Police also took objection to the observations made by the trial court against it, and in respect of the right to dissent. "I've great deal of objections to the conclusions. Are these conclusions permissible in an order of discharge? Is the trial court hearing a PIL or is he examining constitutional issue? This will prejudice my ongoing trial against Mohd. Iliyas and my investigation," Jain submitted.
Jain added, "I don't wish to comment on history of first amendment in constitution which was introduced for curtailing the right of freedom and expression. Its better to leave it to constitutional courts to deal with the issue. Question is, whether it's relevant in a discharge order."
While discharging the accused in the case, a Saket Court had observed that the police was unable to apprehend “actual perpetrators” and “surely managed to rope them as scapegoats” in the matter. Pulling up the prosecution for filing “ill-conceived chargesheets”, Additional Sessions Judge Arul Varma had said the police had “arbitrarily chosen” to array some people from the protesting crowd as accused and others as police witnesses.
During the hearing today, Jain argued that only a trial can decide whether the accused were only curious bystanders. "Whether their role in part of protest was silent, peaceful or violent will emerge in trial. Or will it be pre judged at the stage of charge?", he said.
Jain also argued that the case does not involve the aspect of dissent but is a "simple question of an unlawful assembly turning violent." "All this is good for a seminar or lectures," he said, while referring to the observations made by the trial judge regarding the court's duty to uphold the right to dissent.
Arguing that the observations are going to be detrimental to the further investigation of the case, Jain urged the court to issue notice and also pass an interim order that ongoing trial against Iliyas, further investigation in the FIR and further filing of supplementary chargesheet will remain uninfluenced.
"My interim request is to stay observations. Clarification is necessary, otherwise without that these observations will continue to haunt me. Your lordships may clarify that investigation and further chargesheets will remain uninfluenced. And that this order may not be relied on in any proceedings," Jain submitted.
Advocate Sowjhanya Shankaran, representing Tanha, in response submitted that more than a year later, 11 students of Jamia were arrayed as accused. "It is completely incorrect to suggest that third supplementary chargesheet was not considered at all," she said, adding the submission made by ASG is patently wrong.
Shankaran further submitted that the trial court has considered the law on "mere presence" in protests. "Those observations are necessary for the kind of prosecution this case has been," she said, adding there is no error in observations made by the trial court.
With regard to the prayer made by ASG, she said, "as regards the stay or partial stay, they can do further investigation. Mohd. Iliyas may be impleaded in the first instance, he has right to be heard. This is revisional jurisdiction."
Justice Sharma said the court will not expunge the remarks at this stage but agreed with the submission made by the ASG that "if they [police] have to conduct investigation, this is certainly going to bind the police."
"I cannot interfere in investigation. I am calling for TCR in digitized form. I don't need case diary because I am hearing it against discharge, not acquittal. I am only going to say that observations made against investigating agency will not influence them at all. I am not expunging remarks right now," the court said.
The case is connected to the incidents of violence at Jamia Milia Islamia University in December, 2019. The FIR alleged 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.
It said that no test identification parade was carried out during investigation until filing of the third supplementary chargesheet and that the photographs and videos only demonstrate that the accused persons were standing behind the barricades.
The court observed that liberty of protesting citizens should not have been lightly interfered with and that dissent is nothing but an “extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19” subject to the restrictions contained therein.
It is a right which we are sworn to uphold, the judge said.
The court also said the investigative agencies should have incorporated the use of technology, or have gathered credible intelligence, adding that then only it should have embarked on “galvanizing the judicial system qua the accused persons.”
“Else, it should have abstained from filing such an ill-conceived chargesheets qua persons whose role was confined only to being a part of a protest,” the court said.
In the revision petition, Delhi Police has 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.
“Trial Court failed to appreciate that protest planned was not a typical protest normal in the political culture or democracy but one far more evil and injurious geared towards extremely grave consequences is apparent from the admitted facts on the record,” plea states.
Contending that trial court held a "min-trial" at the stage of framing charges, the police has said that the trial ought to have only merely to sifted through the evidence to find out whether or not there was sufficient ground for proceeding against the accused.
"The sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him," the police has argued.