Discharging Sharjeel Imam, 10 others illegal, Delhi Police to HC

New Delhi: The Delhi Police has contended before the high court that a trial court’s order discharging 11 people, including student activists Sharjeel Imam and Asif Iqbal Tanha, in the 2019 Jamia Nagar violence case, is patently illegal and perverse.

In a petition, the police has 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 in the eyes of law.

The plea is scheduled to come up for hearing on Monday.

The petition has sought to set aside the trial court’s February 4 order that discharged the 11 accused in the case, holding that they were made “scapegoats” by the Delhi Police and that dissent has to be encouraged and not stifled.

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

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

The police said the trial court not only discharged the accused, but was also swayed by emotional and sentimental feelings, casting aspersions on the prosecuting agency and passing gravely prejudicial and adverse remarks against it and the investigation.

“The trial court, while not considering and weighing the evidence on record, has proceeded to discharge the respondents (accused) at the stage of framing of charges. The trial court erred in not only holding a mini-trial at this stage, but also recorded perverse findings which are contrary to the record to arrive at the finding that a case of discharge was made out against the respondents,” the petition said.

It added that at the stage of considering an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.

“At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction,” it said.

The police said the trial court’s order would show that it has proceeded to make observations on the merits of the matter.

“While exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, the trial court ought not to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities, which is done at the stage of trial.

“The impugned order is null and void, non-est and in the teeth of well-settled principles of law,” the plea said, adding that the trial court’s order “ex-facie is patently illegal”.

It said the trial court had erred in observing that the respondents were mere onlookers or bystanders and therefore, only the presence of a person at the protest site was insufficient to sustain an allegation qua the person being a member of such an assembly.

Imam was accused of instigating the riots by delivering a provocative speech at the Jamia Millia 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.

The trial court had 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,” it had added.

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

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

It had also faulted the police for failing to produce any WhatsApp chat, text message 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.

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 chargesheet also included provisions of the Prevention of Damage to Public Property Act.