“Nothing on record to show that alleged hate speech made in presence or at behest of Ashwini Upadhyay”: Delhi Court in Jantar Mantar Anti-communal sloganeering case
Patiala House Court, in its order granting Bail to Ashwani Upadhyay, accused for his alleged participation at Jantar Mantar for Anti-Communal Sloganeering, said, there is nothing on record to show that the alleged hate speech was made at the behest, or in the presence of the accused-applicant.
Not denying the angle of conspiracy in the entire incident, Court added that Liberty of a citizen cannot be curtailed on mere assertions or apprehensions.
Learned MM, Shri Udbhav Kumar Jain, while granting Bail to Ashwani Upadhyay, observed,
“As far as the offence u/s 153A IPC is concerned except for mere assertion, there is nothing on record to show that the alleged hate speech to promote enmity between different groups was done in the presence or at the behest of the applicant/accused.
Even during hearing, this Court has inquired from Ld. APP and so far, there is nothing against the accused in the alleged video. It is not the case where there chances that applicant/accused will abscond.
Conspiracy is no doubt hatched behind closed doors and that the investigation in the present matter is at nascent stage that however, does not imply that liberty of a citizen be curtailed on mere assertions and apprehension.”
Reliance was placed on BP Sharma v. Union of India, (2003) 7 SCC 309 and Prahlad Singh Bhati v. NCT Delhi, AIR 2001 SC 1444, in this regard.
It was further observed that the offences concerned in violation of COVID 19 guidelines are bailable and can be tried on merits by the Trial Court.
The Court imposed a personal bond of Rs. 50000, with one surety in the like amount, in addition to the following conditions:
- The applicant shall continue to cooperate with the ongoing investigations and shall join the investigation as and when summoned by the IO;
- The applicant shall not leave the country without the permission of the court;
- The applicant shall scrupulously appear at each and every stage of the proceedings before concerned Court so as not to cause any obstruction or delay to its progress.
Submissions by the Counsel for the Applicant
Learned Senior Counsel, Vikas Singh, on behalf of applicant submitted that Police cannot apprehend anyone indiscriminately – That in order to attract offence under Section 153A, the alleged speech should be made at the behest of the concerned person or in his presence, which is absent in the given case.
It was added that the mandate of Section 41A CrPC was violated as neither any notice was served upon the applicant-accused for arrest, nor any justification was provided for the same.
Learned Senior Advocate, Sidharth Luthra supporting the contention of Mr. Singh, submitted that it is a clear case of non-compliance of the Arnesh Kumar judgment (Para 12). Reliance was further placed on Munnavar v. State of MP, decided by the Top Court vide order dated February 6, 2021.
Learned APP for the State pointed out two main points – 1. Gravity of offence in the terms of senstivity of the issue 2. Event organised at the behest of the Accused.
“Gathering was held near Parliament during the ongoing Monsoon Session. It was indeed a senstitive time and place when there was no need to gather, hence the applicant/accused has clearly violated against the guidelines issued to curb the Covid-19 Pandemic and Section 144 CrPC which was applicable at that place during that time,” the order stating submission by APP, records.
It was also added by the APP that had the accused been of a bonafide intention, he would have himself approached the police authorities and helped in tracking the concerned persons.
Learned Senior Counsel, Ardhendu Mauli for the applicant, placed reliance on guidelines passed by the Supreme Court in IN RE : Contagion of Covid-19 Virus in Prisons to prevent the over-crowding during this pandemic time.
Learned Senior Advocate, Gopal Sankarnarayan submitted that the viral videos are now in public domain and no where it can be seen that applicant-accused was present when the offence u/s 153A IPC was committed. Moreover, there is no credible information available with the investigating agency to apprehend.
“Mere presence of the applicant-accused at one point of time during the gathering cannot be attributed to whole chain of events happened in active absence of the applicant/accused,” said Mr. Sankarnarayanan.
Learned Counsel, Ashwani Dubey, apprised the bench of the cooperation rendered by the Applicant in the investigation, stating that,
“Applicant-accused has also sent e-mails to the Commissioner of Police, Delhi”
Brief Background
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 Upadhyay 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. Ashwani Upadhyay