By Joseph Maliakan The 4 February order of Additional Sessions Judge , Arul Verma of the Saket Court discharging Sharjeel Imam, Safoora Zagar , Asif Iqbal Tanha and eight others in the December 2019 Jamia violence case registered by the Delhi police under various sections of the Indian Penal Code should be etched in golden letters in the hearts of all freedom loving people everywhere.
Atul Verma’s discharge order is very significant because it will have major salutary effect in dealing with the innumerable cases filed by both the central and state police under the draconian Unlawful Activities Prevention Act (UAPA) 1967 and various sections of the Indian Penal Code ( IPC ) without proper evidence or investigation.
The case pertained to the incidence of violence at Jamia Millia Islamia University in December 2019 while protesting against Citizens Amendment Act 2019 passed by the Indian Parliament enabling non Muslim minorities from Afghanistan, Bangladesh and Pakistan to get Indian citizenship.
The FIR alleged offences of rioting and unlawful assembly under sections 143,147,148, 149, 186, 308, 332, 333, 353, 427, 435, 323, 341, 120B and 34 of the IPC. Ironically, cases were registered only against the protesting students and no effort was made to book policemen who entered the Jamia campus and brutally beat up even those in the university library.
Discharging the accused Atul Verma said dissent is nothing but an extension of the ” invaluable fundamental right to freedom of speech and expression ” guaranteed under Article 19 , subject to the restrictions contained therein. ” It is therefore a right we are sworn to uphold “, the order said.
Atul Verma further said that as laid down by the Supreme Court in P.Vijayan vs the State of Kerala the court is duty bound to lean towards an interpretation which protects the rights of the accused , given the ubiquitous power disparity between them and the state machinery.
In fact in his concluding remarks which is most significant, Atul Verma said to safeguard the citizen’s fundamental right to freedom of speech and assembly , in all its actions the state was obliged to draw a clear line between dissent and insurrection, especially in the context of protests like the present one where the prosecution sought to blur them.
” Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest. Liberty of protesting citizens should not have been lightly interfered with.” Atul Verma pointed out.
In its detailed order the court observed that the police was unable to apprehend the actual perpetrators and ” surely managed rope in the accused and as scapegoats ” . In a severe indictment of the prosecution for filing ” ill-conceived chargesheets ” Additional Sessions Judge , Atul Verma said that the police have arbitrarily chosen to array some people from the protesting crowd as accused and others as ” police ” witnesses. This cherry picking is absolutely detrimental to the percept of fairness , the court said.
The court further observed that the mere presence at the protest site without overt acts cannot lead to implication as accused , and said that the prosecution has exfacie been launched in a ” perfuctinary and cavalier fashion ” against them. To allow such persons undergo rigmarole of long drawn trial , does not augur well for the criminal justice system of our country , Judge Verma added.
” The desideratum is for the investigative agencies to discern the difference between dissent and insurrection . The latter has to be quelled indisputably. However , the former has to be given space , a forum , for dissent is perhaps reflective of something which pricks the citizen’s conscience.” the order said.
In the Jamia violence case the police had originally filed a chargesheet only against Mohmad llyas on 21 April , 2020. A second supplementary chargesheet was then filed against 11other accused people . A third supplementary chargesheet was filed as recently as1 February 2023 . The prosecution tried to establish that the witnesses had identified the accused people on the basis of some photographs.
In this context the court observed that the Delhi Police failed to adduce fresh evidence and rather sought to present old facts in the garb of ” further investigation ” by filing supplementary chargesheets.
” In the present case it has been most unusual of the police to file not one chargesheet but three supplementary chargesheets , with really nothing new to offer.This filing of a slew of chargesheets must cease , else this juggernaut reflects something beyond mere prosecution , and would have the effect of trampling the rights of the accused persons “, the order said.
It further said that there were no eyewitnesses who could substantiate the version of the police that the accused were in any way involved in the commission of the offences. It said that no test identification parade was held until filing of the third supplementary chargesheet and that the photographs and videos only demonstrate that the accused were standing behind barricades.
” There is nothing on record to even prima facie suggest that the accused herein were part of some riotous mob…. Surely prosecution cannot be launched on the basis of conjuctures and surmises and chargesheets definitely cannot be filed on the basis of probabilities.” the order said.
The court also pointed out in the present case the investigative agencies should have incorporated the use of technology, or have gathered credible intelligence , and then only it should have embarked on ” galvanizing the judicial system ” against the accused. Else it should have abstained from filing such ill-conceived chargesheets against people whose role was confined only to being part of a protest .