Sharjeel Imam and others were made 'scapegoats', dissent has to be 'encouraged': Delhi court

New Delhi: A court here on Saturday discharged 11 people including student activists Sharjeel Imam and Asif Iqbal Tanha, who participated in anti-CAA protests, in the 2019 Jamia Nagar violence case, saying they were made "scapegoats" by police and that dissent has to be encouraged, not stifled.

Noting that the accused were merely present at the protest site and there was no incriminating evidence against them, the court said dissent is an extension of the fundamental right to freedom of speech and expression, subject to reasonable restrictions.

It said investigative agencies need to discern the difference between dissent, which has to be given space, and insurrection that should be quelled.

The court, however, ordered the framing of charges against one of the accused, Mohammad Ilyas.

"Marshalling the facts as brought forth from a perusal of the charge sheet and three supplementary charge sheets, 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," Additional Sessions Judge Arul Varma said.

The court faulted the Delhi police for failing to produce any WhatsApp chats, SMS or other proof of the accused interacting with each other and criticised it for "arbitrarily" choosing to array some people from the crowd as accused and police witnesses, saying this "cherry-picking" by the police is detrimental to the precept of fairness.

An FIR was lodged in connection with the violence that erupted after a clash between police and people protesting against the Citizenship (Amendment) Act (CAA) in the Jamia Nagar area here in December 2019.

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

The judge said there were admittedly scores of protesters at the site and some anti-social elements within the crowd could have created an environment of disruption and 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," he added.

The court said the legal proceedings against the 11 accused were initiated in a "perfunctory and cavalier fashion" and "allowing them to undergo the rigmarole of a long-drawn trial does not augur well for the criminal justice system of the country".

"Furthermore, such police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest. The liberty of the protesting citizens should not have been lightly interfered with," it said.

The court said dissent is an extension of the fundamental right to freedom of speech and expression, subject to reasonable restrictions.

Referring to a 2012 verdict of the Supreme Court, the judge said the court is duty-bound to lean towards an interpretation that protects the rights of the accused, given the ubiquitous power disparity between them and the state machinery.

The court said the investigative agencies needed to discern the difference between dissent and insurrection.

"The latter (insurrection) has to be quelled indisputably. However, the former (dissent) has to be given space, a forum, for dissent is perhaps reflective of something which pricks a citizen's conscience," it said.

The court also said dissent has to be encouraged and not stifled, with the condition that it should be absolutely peaceful, without degenerating into violence.

The judge said the probe agency should have incorporated the use of technology or gathered credible intelligence against the accused.

"Else, it should have abstained from filing such ill-conceived chargesheets qua persons whose role was confined only to being a part of a protest," he said.

"Considering the fact that the case of the state is devoid of irrefragable evidence, all the persons charge-sheeted, barring Mohammad Ilyas, are hereby discharged for all the offences for which they were arraigned. They be set at liberty, if not wanted in any other case," the court said in its order.

It also said, "It is apparent that the police have arbitrarily chosen to array some people from the crowd as accused, and others from the same crowd, as police witnesses. This cherry-picking by the police is detrimental to the precept of fairness".

The court said photographs of Ilyas showed him hurling a burning tyre and that he was duly identified by police witnesses.

"Therefore, charges levelled in the charge sheet be framed...(against) accused Mohammad Ilyas," the judge said.

"Needless to say, the investigative agency is not precluded from conducting further investigation in a fair manner...in order to bring to book the actual perpetrators, with the adjuration not to blur lines between dissenters and rioters, and to desist from henceforth arraigning innocent protesters," he added.

The court posted the matter to April 10 for the framing of charges against Ilyas.

Noting that the charge sheets filed in the case had "nothing new to offer", the court said, "This filing of a slew of charge sheets must cease, else this juggernaut reflects something beyond mere prosecution and would have the effect of trampling the rights of accused persons".

The court said the accused were merely present at the spot and there was no incriminating evidence against them.

"No overt act or participation in the commission of offences was attributed to them. There are no eyewitnesses who could substantiate the version of the police that the accused persons were in any way involved in the commission of the offences," the court said.

It also said there was no prohibitory order in the area where the protests took place.

The court said the charge sheet failed to elaborate on the unlawful common object of the accused and there was no evidence regarding the accused sharing the common object with each other and with the crowd in general.

The judge said the test of positive knowledge was also missing in the charge sheet.

"The accused were protesting against a piece of legislation and sloganeering against enactment thereof. Positive knowledge that their sloganeering would result in such a maelstrom is something that cannot be attributed to them sans any cogent proof," the judge said.

Quashing the charge of conspiracy, the court said the prosecution did not submit any proof that there was an agreement or conspiracy between the accused.

"The prosecution did not place any WhatsApp chats, SMS or even proof of the accused persons interacting with each other...even in the photographs, all the 12 accused are not standing side by side and in the video also, they are not seen signalling or talking to each other," the court said.

The Jamia Nagar police station had filed the chargesheet against Imam, Tanha, Safoora Zargar, Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Mohammad Abuzar, Mohammad Shoaib, Umair Ahmad, Bilal Nadeem, Chanda Yadav and Mohammad Ilyas.

The chargesheet was filed under various sections of the Indian Penal Code (IPC), including 148 (rioting, armed with a deadly weapon), 186 (obstructing public servant in discharge of public functions), 353 (assault or criminal force to deter public servant from discharge of his duty), 308 (attempt to commit culpable homicide), 435 (mischief by fire or explosive substance with intent to cause damage), 323 (voluntarily causing hurt), 341 (wrongful restraint) and 120B (criminal conspiracy).

The charge sheet also included provisions of the Prevention of Damage to Public Property Act.