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'Very Unlikely, But You Can Try' : Supreme Court To Delhi Police On Plea To Set Aside Bail Granted To Activists In Riots Case

Radhika Roy
22 July 2021 7:14 AM GMT
Very Unlikely, But You Can Try : Supreme Court To Delhi Police On Plea To Set Aside Bail Granted To Activists In Riots Case
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The Supreme Court on Thursday orally told the Delhi police that it is "very unlikely" to be convinced to set aside the bail granted by the Delhi High Court to three student-activists, Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, in the Delhi Riots conspiracy case.

At the same time, the bench comprising Justices Sanjay Kishan Kaul and Hemant Gupta orally said that it may have a different opinion on whether lengthy debates about statutory provisions should be there in a bail order.

Justice Kaul asked Solicitor General Tushar Mehta if the Delhi Police was aggrieved with the bail granted to the activists or to the interpretation given to the Unlawful Activities Prevention Act by the Delhi High Court.

"We are on both the issues. We will try to convince you on both the points", the Solicitor General replied.

"Very unlikely, but you can try", Justice Kaul responded.

Justice Kaul also said that he was "troubled" by the lengthy bail orders with debates about the statutory provisions.

"This has troubled us many times. Bail matters are heard at length in trial court, High Court and here. You can't do it here. We only propose to hear this matter for only couple of hours", he said.

"One thing can be said that provisions of the Act are not to be debated in this manner", Justice Kaul added.

"If we are going to debate for hours a bail matter…Bail proceedings are not in the nature of final adjudicatory proceedings. Prima facie call has to be taken if bail has to be granted or not", Justice Kaul remarked.

It may be recalled that in the bail order, the division bench of the High Court had interpreted the offence of 'terrorist act' under Section 15 of the UAPA, and held that there has to be specific and particularized allegations in the chargesheet regarding incitement of violence to attract the said offence. The High Court had prima facie concluded from the allegations in the chargesheet that the three accused activists were merely mobilizing crowd for the anti-CAA protests and the same could not held to be a 'terrorist act' under UAPA.

'Right To Protest Not 'Terrorist Act' Under UAPA' : Delhi High Court Finds No Prima Facie Case Against Asif Iqbal Tanha, Natasha Narwal & Devangana Kalita

The matter in the Supreme Court was adjourned today by four weeks at the request of Senior Advocate Kapil Sibal, who was representing Devangana Kalita and Natasha Narwal.

Sibal sought permission to submit a pendrive of the chargesheet, as it runs to 20,000 pages.

"I am seeking some time. The chargesheet runs into 20,000 pages. In the meantime allow the pen drive to be filed. Otherwise we will not be able to argue the matter. How will we translate. We don't have the wherewithal. I have requested my learned friend if it can be fixed after 10 August. Let us file a pen drive", Sibal said.

The bench allowed the request of Sibal to submit a pendrive instead of a physical copy of the chargesheet. Senior Advocate Siddharth Agarwal appeared for Asif Iqbal Tanha.

PREVIOUS HEARING


On the previous date, a Vacation Bench of Justices Hemant Gupta and V. Ramasubramanian had issued notice in the appeal and had stated that the impugned judgement would not be treated as a precedent until the matter was fully decided. However, the Court did not interfere with the bail granted to the three activists.

The Supreme Court had also observed that the Delhi High Court judgment raised questions of "pan-India" importance relating to the interpretation of the Unlawful Activities Prevention Act (UAPA).

The Bench said that it was "troubling" that the High Court has gone on to narrow down the scope of UAPA in a bail application when there was no challenge to the statute.

After the admission hearing, the Bench passed the following order:

"Issue notice. Let the Counter Affidavit be filed within 4 weeks. List in the week commencing 19 July, on a non-miscellaneous day. In the meantime, the impugned judgment shall not be treated as a precedent and may not be relied upon by any of the parties in any of the proceeding. It is clarified that the relief granted to the Respondents will not be affected at this stage".

BACKGROUND

The Delhi High Court in its judgments dated 15th June found that offences under the Unlawful Activities Prevention Act (UAPA) were prima facie not made out against student leaders Asif Iqbal Tanha, Natasha Narwal, and DevanganaKalita in the Delhi riots conspiracy case. Going by the allegations in the chargesheet, the accused were only leading protests. The High Court said that there was no specific or particularized allegations against the accused relating to terrorist activities.

The High Court also observed that right to protest cannot be termed as 'terrorist act' under the UAPA.

In the three separate orders delivered allowing the bail applications of Tanha, Narwal and Kalita, the High Court undertook a factual examination of the allegations to ascertain if prima facie case was made out against them for the purposes of Section 43D(5) of UAPA. Further, important and significant observations were made by the High Court relating to the fundamental right to protest and the frivolous use of UAPA to stifle citizens' dissent.

The Delhi Police had filed a chargesheet against them alleging that the protests organized by them against the Citizenship Amendment Act from December 2019 were part of a "larger conspiracy" behind the North East Delhi communal riots which took place in the last week of February 2020.

However, the High Court Bench comprising Justices Siddharth Mridul and Anup JairamBhambhani, after a preliminary analysis of the chargesheet, observed that the allegations did not prima facie constitute the alleged UAPA offences relating to terrorist activities (Sections 15,17 and 18).

Consequently, the Division Bench stated that the rigour of Section 43D(5) of the UAPA against the grant of bail was not attracted against the accused, and hence they were entitled to grant of bail under the ordinary principles under the Code of Criminal Procedure.

"Since we are of the view that no offence under sections 15, 17 or 18 UAPA is made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under section 43D(5) UAPA do not apply; and the court may therefore fall back upon the usual and ordinary considerations for bail under the Cr.P.C".

These three student leaders had spent over a period of one year in Tihar jail, even amid the two deadly waves of the COVID pandemic. The benefit of interim bail on account of the pandemic was not available to them as they were accused under the UAPA. After Natasha Narwal lost her father Mahavir Narwal to COVID last month, the High Court had granted her interim bail for three weeks to perform the funeral rites.


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