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A Delhi Court today, allowed Bail application of Advocate Ashwini Upadhyay who was yesterday arrested & remanded to judicial custody in connection with allegedly being part of the Anti-Muslim sloganeering incident that occurred at Jantar Mantar.

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

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

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.

Courtroom Proceedings

“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.

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

“He was not present at the place where the alleged incident took place. Therefore no offence has been committed. Luthra referred to SC order in Munawar’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.

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.

Case Title: State v Ashwini Upadhya