Read Time: 17 minutes

Synopsis

A bench of Justice Swarana Kanta Sharma of the Delhi High Court on Tuesday 'partially' set aside the trial court’s order which discharged Sharjeel Imam and 10 others in connection with the Jamia Milia Islamia University violence case of 2019.

The single-judge bench said, " While there is no denial of the right to freedom of expression, this Court remains aware of its duty and has tried to decide the issue in that way. Protesting is subject to peaceful assembly and peaceful association, thus, the State can restrict the right of the individual". 

"Acts of violence and violent Sspeeches are not protected under law", the judge added. 

While partially reversing the trial court order, the court noted the accused were raising slogans such as "Delhi Police Murdabad", and the video clips reveal that an "uncontrollable" mob of students were forced to try and go beyond the barricades at Jamia.

The court framed charges against nine accused persons including Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar and six others under various sections of IPC, for rioting and unlawful assembly. 

However, the court charged two accused persons namely, Mohd. Abuzar and Mohd Shoaib only of Section 143 IPC, and discharged them for the other offences. 

The detailed order is awaited.

Notably, on Thursday, the court 'reserved orders' in the plea. While reserving orders, Justice Sharma had noted that none of the respondents had an objection to “expunging” certain remarks made by the Trial Court against the Delhi Police.

Additional Solicitor General (ASG) Sanjay Jain had appeared for the State. The ASG had contended that the trial court “overstepped its jurisdiction” in passing “disparaging and gravely prejudicial observations" against the investigation agency and that the same ought to be expunged from the record.

He had also submitted that the trial court order was “perverse” and “unsustainable”. “Non-consideration or selective consideration of the third chargesheet makes the order even more perverse”, Jain had argued. He had contended that the trial court at the stage of framing of charges could not conduct a mini-trial by determining the credibility of the evidence.

Initially, the court had asked, “What they say primarily in their written submissions is this person was merely standing there. The trial court judge has said that you couldn't bring anything on record for the court to believe that these persons were part of the crowd who committed the offence. Another argument they raised is that you entered their premises and when there were so many people, why you only picked up a few?”

In reply, the ASG had stated that there were 10 clips available with the prosecution, out of which in Clip No. 3 and 9, the accused persons could be identified. He added that by Clip 3, six discharged accused could be identified and by Clip 9 one accused could be identified. Jain stated that the discharged accused person could be seen indulging in acts as described in the chargesheets.

On the contrary, Senior Advocate Rebecca John appeared for Safoora Zargar and had contended, "The person they claim is me is in Clip 9. At the very outset, they (Delhi Police) have to cross the threshold as far as the identification is concerned because the person in the clip has his face covered".

“Till such time my( Safoora) identity is not confirmed, till we don't get a sense of whether that's me, my role has to be disconnected. For the sake of clarity...there are snapshots also that they've taken. There is no reason for the prosecution to conclude that it was me”, John argued. She submitted that the first two chargesheets did not have Safoora’s name. “Not a single police officer has recognized me”, she had added.

“Reading Statement of an ASI…Mauke par police walon ko ghayal krke....ahinsa fhailane wale ladkon ko maine dekh liya h". He keeps saying"ladka" (Boy) throughout the chargesheet. I am a "ladki" (Girl), not a ladka (Boy)”, John had contended.

The senior counsel had contended that one Yasin Khan had videographed the entire incident and he had sent the same to the Delhi Police. She asserted that the source of the Delhi Police was this man. “For the first time, I am named as an accused on September 1, 2021, for an incident that happened in 2019… They have not stated on what basis they were able to identify a person whose face was covered with cloth…somewhere you've to say how you identify this person. You can't make out who that person is, whose face is covered”, John had argued.

She had further stated that the third supplementary chargesheet was filed on February 2, 2023, while arguments of charge were going on in the trial court. “What makes it famous is that ASI identifies some people, they do not identify me, these are four police officers who were standing at gate…where the incident took place…they did not name me, these did not identify me”, John had argued.

John had said, “I understand their concerns over the remarks made by the trial court on the investigating agency. My Lady can consider expunging them. But my presence at the incident is disputed”. She had further stated that a statement of a co-accused is legally inadmissible.

Advocate MR Shamshad appearing for Mohd. Qasim, Mahmood Anwar, Shahzar Raza Khan, and Umair Ahmed had contended that they were merely bystanders and because of any overt act they cannot be charged, and that the trial court was right while discharging them in the present case.

It is to be noted that on March 16, the single-judge bench directed all the respondents to 'file their written submissions within four days' and also directed the Delhi Police to 'place on the record the videos of the incident they rely upon'.

Furthermore, the court had directed all the parties to arrange all the videos and electronic media they wished to rely upon in the present matter before the next date of hearing, so that "no further adjournments" are sought by any counsel, and the matter can be concluded. 

Trial Court Order:

Additional Sessions Judge (ASJ) Arul Varma of the Saket Court, had emphasized that “dissent is simply an extension of the invaluable fundamental right to free speech and expression under Article 19 of the Constitution of India” while discharging Imam, and others in the case.

“Dissent is nothing but an extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19 of the Constitution of India, subject to the restrictions contained. It is therefore a right which we are sworn to uphold”, the Judge had said.

While discharging the 11 accused persons, the court had pulled up the Delhi Police and said, “The police were unable to apprehend the actual perpetrators behind the commission of the offence, but surely managed to rope the persons herein as scapegoats”.

“Investigating agencies should have incorporated the use of technology, or have gathered credible intelligence, and then only should have embarked on galvanizing the judicial system qua the accused herein…It should have abstained from filing such an ill-conceived chargesheets qua persons whose role was confined only to being part of a protest”, the Judge had added.

The Judge in the 32-page order had said, “Some anti-social elements within the crowd created an environment of disruption and did create havoc, however, the moot question remains: whether the accused persons herein were even prima facie complicit in taking part in that mayhem? The answer is an unequivocal ‘no’. Marshaling the facts as brought forth from a perusal of the chargesheet and three supplementary chargesheets, this Court cannot but arrive at the conclusion that the police were unable to apprehend the actual perpetrators behind the commission of the offence, but surely managed to rope the persons herein as scapegoats".

The FIR, in this case, was filed in connection with a protest held by students and residents of Jamia Nagar against the Citizenship (Amendment) Bill. The Trial court discharged Sharjeel Imam, Asif Iqbal Tanha, Sarfoora Zargar, Mohammed Abuzar, Umair Ahmad, Mohammed Shoaib, Mahmood Anwar, Mohammed Qasim, Mohammed Bilal Nadeem, Shahzar Raza Khan, Chanda Yadav.

All the accused persons were charged with offences under Sections 143, 147, 148, 149, 186, 323, 353, 332, 333, 308, 341, 427, 435, 120B, and 34 of the Indian Penal Code.

Case Title: State v. Mohd. Qasim & Ors.

Statue: The Indian Penal Code, The Constitution of India, and the Code of Criminal Procedure