[Delhi Riots] Right to protest, express dissent has fundamental stature in a democracy: Delhi High Court while granting bail to 5 accused

The Delhi High Court on Friday held that the right to protest and express dissent is a right that occupies a fundamental stature in a democratic polity [State v. Arif, etc]..Therefore, the sole act of protesting should not be employed as a weapon to justify the incarceration of those who are exercising this right, the order stated.The observations made in the order granting bail to five accused persons in a murder case stemming from the Delhi Riots violence that took place in February 2020.“It is the Constitutional duty of the Court to ensure that there is no arbitrary deprivation of personal liberty in the face of excess of State power,” Justice Subramonium Prasad held..[Delhi Riots] Frontal attack on police who were 'hopelessly outnumbered', argues prosecution opposing bails of accused in riots case .The Court also noted that Section 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object) specifically read with Section 302 (murder) of the Indian Penal Code (IPC) could not be applied on the basis of “vague evidence and general allegations.”.“When there is a crowd involved, at the juncture of grant or denial of bail, the Court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object,” the order observed.It also stated that there couldn’t be an umbrella assumption of guilt on behalf of every accused by the Court, and every decision must be taken on careful consideration of the facts and circumstances. “This principle, therefore, gains utmost importance when the Court considers the question of grant or denial of bail,” it added..The Court also delved into the individual cases of the five accused in the case. Below are the findings in each case..Mohd Arif.The prosecution alleged that the accused was wearing a white shirt and black pant and was identified on a CCTV camera at Chand Bagh, where he was seen going towards the scene of crime. The petitioner was further caught on another camera installed at Chand Bagh where he was seen hiding a stick. His identity was attempted to be established through another video where he was reportedly shown at the scene of crime..The prosecution also contended that the conspiracy had been established on February 23, 2020, and that the offence was pre-planned. Meetings were held 1-2 days prior to the alleged incident wherein the protesters were motivated to gather at the site of the alleged incident on February 24 in order to instigate violence, and therefore, there was a meeting of minds due to which Section 149 and Section 120B of the IPC were made out, the prosecution argued. Furthermore, secret codes had been used, and the petitioner herein was fully involved.The Court noted that Arif was arrested on March 11, 2020, and has been in judicial custody ever since..On the CCTV footage of Arif at the crime scene, the Court said,“A perusal of the material on record has revealed to the Court that the video footage which placed the petitioner at the scene of crime cannot be relied upon at this stage as the petitioner is not explicitly visible in the same and the clothes similar to that of the petitioner have been adorned by multiple others as well, and the CDR in the instant case of the Petitioner is inconclusive as the petitioner is a resident of the local area…”Arif’s purported presence in the video where he was alleged to have been hiding a danda or a stick was observed by the Court to not justify his “continued incarceration.” for the authenticity of the same was not to be “delved into at this point,” and that it was a matter of trial..Significantly, the Court was of the view that bail jurisprudence attempts to bridge the gap between the personal liberty of an accused and ensuring that social security remains intact.“It is the intricate balance between the securing the personal liberty of an individual and ensuring that this liberty does not lead to an eventual disturbance of public order,” the Court said..The Court underscored that it was egregious and against the principles of the Constitution to allow an accused to remain languishing behind bars during the pendency of the trial. Arif was thus granted bail and directed to furnish a bond of ₹35,000 with one surety of the like amount to the satisfaction of the trial court/duty magistrate. The conditions imposed included his not leaving Delhi without prior permission of the Court, reporting to the concerned Police Station every Tuesday and Thursday at 10:30 am, and not tampering with evidence or trying to influence the witnesses..Suvaleen.The prosecution had relied on the statement of a police witness to allege that the petitioner Suvaleen had joined the protests and pelted stones at the police officials at the place of the incident. He, along with his associates, were alleged to have assaulted police officials who were stuck at the divider of the Main Wazirabad Road in North East Delhi, and when the police officials became unconscious, he looted the mobile phone of Inspector Narender Singh..Suvaleen was alleged to have left Delhi for Bulandshahar, Uttar Pradesh, but the IMEI from the purportedly looted mobile phone was traced and subsequent raids led to his arrest. It was argued that it was not a simple case, but a grievous one attracting the offence of murder and bail shouldn’t be granted."The submission that the looted mobile phone of Inspector Narender Singh was found in the possession of the petitioner and that he had fled to Bulandshahar, UP post the alleged incident cannot be employed at this point as a substantial ground for the continued incarceration of the petitioner," the Court said..The petitioner was stated to have been arrested on May 17, 2020, and was therefore in judicial custody for 16 months from the time of his arrest..Further, it was noted that the Supreme Court had time and again held that Courts “need to be alive to both ends of the spectrum,” which meant that the Court had a duty to ensure proper enforcement of criminal law and at the same time ensure that the law did not become a tool for targeted harassment..Whether or not the possession of the looted mobile phone and Suvaleen’s consequent fleeing to his home town was conclusive of his presence at the spot of the alleged incident was not something the Court wanted to delve into. It held that the same was a matter to be ascertained during the trial.“This Court is of the opinion that it would not be prudent to keep the petitioner, who is merely 18 years of age, behind bars for an undefined period of time at this stage. Continued incarceration of the Petitioner with hardened criminals will only be detrimental and, thus, is not justified,” it added.Similar bail conditions were imposed on Suvaleen..Furkan.Furkan was alleged to have visited the site at Chand Bagh regularly to protest, and assaulted police officials with sticks. The police had relied on CCTV to establish his presence at the scene of crime.“The petitioner herein has been in custody for 16 months and was formally added by way of chargesheet dated 08.06.2020. A perusal of the material on record has revealed to the Court that there is no electronic evidence which places the petitioner at the Scene of Crime, and the CDR in the instant case of the petitioner is inconclusive as the Petitioner is a resident of the local area,” the Court observed.The Court, therefore, took the view that it would not be prudent to keep Furkan behind bars for an undefined period of time at this stage. “The petitioner has roots in society, and, therefore, there is no danger of him absconding and fleeing,” it added..Tabassum.Tabassum was alleged to have been in constant touch with the main “organiser-cum-conspirators” of the anti-Citizenship Amendment Act (CAA) protests, Suleiman Siddiqui and Ravish (declared proclaimed offender), and that during the protests, she would deliver speeches to instigate the crowd to commit violence. Further, the prosecution alleged that she would collect sticks, stones and rods in the tent with the other accused..The Court noted that Tabassum had been in custody for 10 months and was formally added by way of the third supplementary chargesheet dated November 17, 2020. She was observed to have not been caught on any video footage in the vicinity of the protest site, and the contention of the prosecution that a few women wearing burqas have been caught assaulting police officials in a video did not have carry any weight, as she couldn’t be identified in the video.It also said it “would not be prudent” to keep Tabassum, who had two minor children, behind bars for an undefined period at this stage..The Court observed that merely being one of the organisers of the protest and being in touch with those who participated in the protest was not sufficient to justify the petitioner's involvement in the "pre-planning" of the alleged incident. "It is to be noted that the right to protest and express dissent is a right which occupies a fundamental stature in a democratic polity, and therefore, the sole act of protesting should not be employed as a weapon to justify the incarceration of those who are exercising this right,” the Court noted..Shadab Ahmad.Ahmad’s presence at the protest site on the day of the alleged incident was said to be not natural, as he was living in Jagatpuri, which was situated 10 kilometres away from the scene of the alleged crime.The prosecution also relied on the statements of public witnesses, who had reportedly identified him as the “main organiser of the protests,” who would “deliver hate speeches.” Ahmad was also stated to have been a part of the meeting that took place on the night of February 23, 2020, where the “planning for the violence” on the following day was finalised..The Court, however, noted that the fact that the petitioner's location recorded through a mobile tower near the scene of crime cannot, at this moment, lead to a conclusion that he was present there.“At this juncture, it appears that the statements of the police officers that have been recorded are wholly contradictory to the CDR and Cell ID details that are on record,” it pointed out.Without commenting on the merits, the Court opined that Ahmad couldn’t be made to languish in jail for a longer period of time.Similar bail conditions were imposed on Ahmad..Lawyers.For Arif - Advocates Tanveer Ahmed Mir and Kartik VenuFor Suvleen and Furkan - Advocate Dinesh Kumar TiwariFor Ahmad - Senior Counsel Rebecca John, Advocates Shivam Sharma, Kartik Murukutla and Praavita Kashyap.For Tabassum - Advocates Abdul Gaffar and Deeksha DewediFor State - Additional Solicitor General SV Raju, Special Public Prosecutor Amit Prasad and Advocates Anshuman Raghuvanshi and Ayodhya Prasad..[Read Order]