Jamia violence case: HC sets aside discharge order of Imam, Tanha, 9 others

New Delhi: The Delhi High Court on Tuesday partially set aside a trial court's order discharging 11 people, including JNU student Sharjeel Imam and activists Asif Iqbal Tanha and Safoora Zargar, in a 2019 Jamia Nagar violence case, and ordered framing of fresh charges against them.

The high court said prima facie charges of rioting and unlawful assembly are made out against nine of the 11 accused, including Imam, Tanha and Zargar.

"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. Right to peaceful assembly is subject to restriction. Damage to property and peace is not protected," Justice Swarana Kanta Sharma said while pronouncing the verdict.

The high court said the acts of violence or violent speeches are not protected and added that prima facie, as seen in the videos, some of the respondents were in the first line of the mob and were raising slogans against authorities and violently pushing the barricades.

The case concerns the violence that erupted after a clash between the Delhi Police and those protesting against the Citizenship (Amendment) Act (CAA) in the Jamia Nagar area here in December 2019.

The detailed judgment is awaited.

The trial court had in its February 4 order discharged 11 people from the case while holding that they were made "scapegoats" by police and that dissent has to be encouraged, not stifled.

While discharging the 11 accused, the trial court had ordered framing of charges against another accused, Mohammad Ilyas.

The 11 people who were discharged by the trial court in the case are Imam, Tanha, Zargar, Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Mohammad Abuzar, Mohammad Shoaib, Umair Ahmad, Bilal Nadeem and Chanda Yadav.

The high court said that Qasim, Anwar, Khan, Ahmad, Nadeem, Imam, Yadav and Zargar have been charged under sections 143 (unlawful assembly), 147 (rioting), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object), 186 (obstructing public servant in discharge of public functions), 353 (assault or criminal force to deter public servant from discharge of his duty) and 427 (mischief causing loss or damage) of the IPC and sections of the Prevention of Damage to Public Properties Act.

They are discharged of rest of the offences as per the charge sheet.

It charged Abuzar and Shoaib under section 143 Indian Penal Code (IPC) and discharged of all other offences as per the charge sheet.

The high court discharged Tanha of Sections 308 (attempt to commit culpable homicide), 323 (voluntarily causing hurt), 341 (wrongful restraint) and 435 (mischief by fire or explosive substance with intent to cause damage) of the IPC and charges were framed against him under other sections, including rioting.

It said in case any evidence comes up during the trial against rest of the accused for offences for which they have been discharged today, the trial court may proceed accordingly.

Police, in its revision petition, said the trial court's order is in the teeth of well-settled principles of law, suffers from grave infirmities that go to the root of the matter and is perverse.

The plea of the police also said the trial court not only discharged the accused persons, but was also swayed by "emotional" and "sentimental feelings".

It cast aspersions on the prosecuting agency and passed "gravely prejudicial" and "adverse" remarks against the prosecuting agency and the investigation, the police said.

It contended that the trial court's order was perverse and unsustainable in law as it cannot indulge in conducting a mini-trial at the stage of framing charges by determining the credibility of the evidence as to whether it would warrant a conviction or not.

The police's counsel had argued that conviction can take place purely on the testimony of police witnesses and as such, the trial court had erred in holding that there was no evidence that could convict the respondents.

The non-consideration or selective consideration of the third charge sheet for the reasons stated in the order was fatal and made the order perverse, the police's counsel said.

The police's plea was opposed by the counsel for the 11 people, who submitted that there was no error in the order passed by the trial court.

The lawyer representing Zargar had contested her presence and identification at the spot and said the face of the person whom the police claimed to be Zargar was fully covered and it had not explained how it came to the conclusion that it was indeed Zargar.

Defending his discharge in the case, Imam had said he had only campaigned in favour of a peaceful protest and a "chakka jam" cannot be called a "violent method of protest".

Police have also challenged the trial court's order, saying it "overstepped its jurisdiction in passing disparaging and gravely prejudicial observations against the investigation and investigative agencies" and therefore, such observations ought to be expunged from the record.

Imam was accused of instigating the riots by delivering a provocative speech at the Jamia Millia Islamia University on December 13, 2019. He continues to remain in jail as he is an accused in the larger conspiracy case of the 2020 northeast Delhi riots.