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A Delhi Court on Wednesday, heard the bail plea of Advocate Ashwini Upadhyay who was yesterday arrested and remanded in judicial custody in connection with allegedly being part of the anti-muslim sloganeering incident that occurred at Jantar Mantar.

Upadhyay has maintained that he had simply organised a rally against Colonial laws and it was after the rally had ended that miscreants appeared.

The matter was heard by Metropolitan Magistrate Udbhav Kumar Jain who reserved the order for 4pm on Wednesday.

SCBA President and Senior Advocate Vikas Singh, Sr Adv Siddharth Luthra and Advocate Ashwani Dubey appeared for Upadhyay.

The Senior Advocate Vikas Singh made his submissions on the matter, stressing over the fact that the police cannot arrest anyone when there was no plausible suspicion of the person being present at site of incident.

“This is a case where Upadhyay was present from 10-11 and the incident happened at 5. I don’t understand why the FIR was registered in the midnight when the incident took place in the evening. The police cannot just arrest any person. There is no justification given.”

“I beseech that bail should be granted today and he be released forthwith without having to stay a day in incarceration,” added Singh.

Further, Advocate Siddharth Luthra referring to SC order in Munnawwar’s case asserted that,

“He was not present at the place where the alleged incident took place. Therefore no offence has been committed. Luthra refers to SC order in Munnawwar’s case.Very often in life we are part of a public gathering but that does not mean whatever happens later should be attributed to that person.”

On the contrary the learned PP contended that,

“The gravity of the incident depends on the sensitivity of the case. This is a pandemic and many people are being gathered. Moreover, Independence Day is approaching and the place where the gathering was made is near the parliament, a sensitive area.”

“The constable had been telling them consistently to wear mask but they were not listening. There were even hate speeches which is recorder in the video. No permission was taken for the rally,” PP added.

The Judge noted that currently what he was concerned about was whether IO was present at the place of incident or not.

To this the PP replied,

“That is a matter of investigation but he has admitted he was present at the place of incident. He was one of the main speakers. He has not made any complaints not to raise such protests. He did not seek permission then did not listed to the constable and then there were hate speeches. He says he left the place but there is no such evidence. It is at nascent stage.Arrest under section 41 was necessary since it is a nascent stage. Moreover there is no delay.”

Senior Advocate Vikas Singh rebutted to this and added that,

“You cannot arrest a person on the pretext that there were many people. My friend is not right on 41. 41 has to be read with 41A. There is no proof of involvement. It’s not even in the FIR that I was in the video. I would be the last person to support hate speech. If the hate speech was raised before Upadhyay, he would have informed but he was not present at the time of sloganeering.”

“It is not a matter of discretion with the IO whether to arrest or not but the discretion has to be exercised in accordance with law as in case of Arnesh Kumar,” noted Senior Advocate Luthra.

Advocate Luthra reads out section 39 CrPC and asserted that section 153 which has been invoked against Upadhyay is not under this.

Adv Ardhendumauli Prasad referred to a judgement of the Supreme Court which noted that a person may be released on bail if the offence is not grievous.

Further, Sr Adv Gopal Sankarnarayanan contended that, "There is no explanation as to why custody is required when the videos are available in public and he is not in the video. Will your lordship be responsible, if today I make a hate speech?"

A Delhi court on Tuesday had remanded alleged accused Vineet & Deepak Singh to one-day police custody and sent other four accused including advocate Ashwini Upadhayay to two days judicial custody in connection with inflammatory sloganeering near Jantar Mantar.

During the court of hearing on Tuesday ,the Duty MM Tanvi Khurana observed that,

“This court finds merit in the application only to the extent that accused Deepak Singh Hindu and Vineet Bajpai be taken in police custody for a period of one day subject to medical examination within 24 hours and compliances of all the guidelines laid down by Hon’ble Supreme Court and Hon’ble High Court”

The MM had before reserved the order on Delhi Police's plea that sought three day custody of two accused Vineet and Deepak Singh and judicial custody of four other accused, including Ashwani Upadhyay.

“The IO has filed an application seeking police custody remand for accused Deepak Singh Hindu, S/o Sh. Kanchan Singh and Vineet Bajpai, S/o Sh. Ram Naresh Bajpai for three days,” noted the Judge

The six alleged accused in the case Ashwini Upadhyay, Preet Singh, Deepak Singh Hindu, Vinod Sharma, Vineet Bajpai and Deepak Kumar, were produced before duty Metropolitan Magistrate after they were arrested by the Delhi Police.

The Delhi Police had earlier in the day detained all six people.

“All six people - BJP leader Ashwani Upadhyay, Vinod Sharma, Deepak Singh, Vinit Kranti, Preet Singh, Deepak - have been formally arrested in connection with inflammatory sloganeering near Jantar Mantar on Sunday,” informed the Delhi Police to the media.

The learned APP submitted that,

“As the matter pertains to commission of offence punishable u/s 153A of IPC. It needs to be unearthed that what was the connection of the above mentioned accused persons with other outfits, what was the source funding behind the incident, what was the hidden agenda behind commission of offence, the object thereof, the modus operandi behind collection of a huge gathering, the source of spreading the information and identification of other accused persons.”

The counsel for accused Deepak Singh Hindu strongly objected to the present application and stated that,

“The prayer made is not justified rather the investigating agency does not have any merit to press for the present application. He also contended that the police have no evidence to proceed against the accused Deepak Singh Hindu.”

The MM observed that,

“The IO in this matter has sought police custody remand for 03 days in order to unearth the conspiracy behind the incident and to get the mobile recovered along with identification of other accused persons. It is not mentioned whether the accused are to be taken at some place for the recovery. From the submissions and contentions itself, the time period sought for police custody remand is not justified. The same can be conducted within one day and therefore, after considering the submissions in totality, this court is of the considered opinion that one day police custody remand is sufficient for the purpose mentioned.”

Background

It must be noted that on Monday the Delhi Police had stated that they had registered a first information report (FIR) in connection with a video circulating on social media in which some people are seen raising anti-Muslim and inflammatory slogans near Jantar Mantar in central Delhi on Sunday.

The police later added that they have identified four suspects who are seen in the video raising communal and inflammatory slogans.

The slogans were raised purportedly at an event organised on Sunday to demand abolition of colonial-era laws. The officer said the organisers, including former Delhi BJP spokersperson and Supreme Court lawyer Ashwini Upadhyay .

Subsequently, an FIR was registered on Monday by the Delhi Police against “unknown persons” under Sections 153A (promoting enmity between different groups) and 188 (disobedience to order duly promulgated by public servant) of the Indian Penal Code and Section 51 of the Delhi Disaster Management Authority Act for violating Covid-19 protocol.

The complainants sought a criminal case under Section 295A (deliberate and malicious acts, intended to outrage religious feelings) of the Indian Penal Code “against all those particularly the leaders, who were part of the huge gathering as it is deliberate and malicious”.

The purported video was circulated on social media with allegations that the communal sloganeering took place during the event organised on Sunday at a road near Jantar Mantar by Upadhyay under the banner of Bharat Jodo Andolan (unite India movement).

However, Upadhyay on his twitter handle has posted a video where he has refuted the allegations, and stated that inflammatory slogans were not raised during the event that started around 11am and was over by noon.

[Case Title – State v Ashwini Upadhyay]