A sessions court in Delhi granted bail to Bhim Army chief Chandrashekhar Azad on January 15. However, the court made the city out of bounds for him for a month till the Assembly elections are over.
Additional Session Judge Dr Kamini Lau—before going into the details of arguments forwarded by the prosecution and defence—began her order by quoting a stanza of Rabindranath Tagore’s poem ‘Let My Country Awake’. The poem was composed during the early 1890s, at a time when the British policy of divide and rule was imposed, in which Tagore envisaged a nation where there is no fear in the mind of people.
BAIL APPLICATION
In his bail plea, the Bhim Army chief—who had been in judicial custody since December 21, 2019 for “forcefully” protesting at Jama Masjid in the Walled City on December 20—had alleged that he had been wrongly and maliciously implicated in the case. He also alleged that various provisions had been invoked against him on factual allegations without any backing of evidence.
He further alleged that mandatory provisions of Section 41 and 41 (A) of the Criminal Procedure Code (CrPC) were not complied with in terms of the guidelines and safeguards laid down by the Supreme Court in the case of Arnesh Kumar vs State of Bihar reported in 2014.
He also pointed out that most of the provisions invoked were bailable and in so far as the provisions of sections 148, 332 and 436 of the Indian Penal Code (IPC) read with 120-B of the IPC and Section ¾ of the Damage to Public Property (PDPP) Act are concerned, there was no credible evidence which can even remotely suggest that he was involved in any illegal activity.
He further pleaded that he stayed with his family at Saharanpur in Uttar Pradesh and that there was no apprehension of him going absconding or evading trial. He pointed out that even otherwise, the material witnesses are all police officers. He undertook not to tamper with the evidence and comply with conditions imposed by the court.
THE ALLEGATIONS
In his detailed reply to the bail application, Sub-inspector Santosh Kumar, who is an investigating officer in the case, alleged there was a public protest on December 20 last year against the Citizenship (Amendment) Act 2019 (CAA) and the National Register of Citizens (NRC) near Jama Masjid in Old Delhi.
Some of the protesters were present in the area and police personnel were deployed in large number to maintain law and order. The accused was also present at the spot and made a speech, which was likely to incite violence. Pursuant to the speech—as alleged—thousands of protesters started proceeding towards Jama Masjid area from Delhi Gate side in Daryaganj.
“At about 6:00 PM, the crowd congregated near Delhi Gate and reached outside the office of the DCP (deputy commissioner of police), Central District, and also outside the police station, Daryaganj. The protesters were shouting slogans against the central government and also planning to proceed to Jantar Mantar. The protesters turned violent and started throwing stones at the police personnel who were deployed at the spot. The police used a water cannon in order to disperse the crowd, but the group of persons turned violent and all of a sudden burnt a car,” alleged the investigating officer. Several persons were detained who were allegedly part of the “unruly mob”, which set the vehicle on fire. The accused along with 15 others were later arrested by the police.
The IO said the investigation has been transferred to the Special Investigation Team of Delhi Police’s Crime Branch. During investigations, the IO told the court, the seized CCTV footage dated December 20, which was of poor quality, was examined. Since the incident took place in late evening, it is therefore hard to identify the faces.
He said media houses (both electronic and print) have been issued notices to provide the videos and photographs of the spots covered by them and the same is still awaited. The CCTV camera installed in the vicinity/adjoining areas, where the alleged offences took place, are being identified and the videos are scrutinised, he said. According to the IO, in the drone camera footage, the accused was clearly seen at the religious place surrounded by the public in large number and the accused was seen making inflammatory speeches. He had not sought prior permission from the concerned authority to go there.
The IO also placed on record the details of nine previous cases filed against him in Uttar Pradesh. He is out on bail in eight cases and in the other case, the Supreme Court has recommended a closure.
‘CHANDRA SHEKHAR DISLOYAL TO NATION’
Opposing the bail application, Additional Public Prosecutor Pankaj Bhatia said the commission of offences by the accused are against the nation and not any individual, which in itself is a heinous crime. It not only shows “treachery/disloyalty/betrayal and faithlessness” against the nation but also proven by his acts.
He argued that the investigations into the case are at a very initial stage and that to reach a conclusion, substantial time is required. It was also argued that the accused had sent an intimation regarding the ‘dharna’ (sit-in) procession. Though the permission was not granted, he went ahead and organised the same at a religious place.
The prosecutor also referred to the drone footage, where he claimed that the applicant can “clearly” be seen surrounded by people and making speech. He also argued that the police personnel who were deployed at the Jama Masjid have stated in their statements that the applicant delivered inflammatory speech during the Friday prayers at Jama Masjid, pursuant to which a crowd of several thousands of people gathered at Jama Masjid and marched towards Delhi Gate for Jantar Mantar. Later, the march turned violent and public property (private vehicles, official barricades and roads) was vandalised. Injuries to 17 police personnel and three media persons were also caused.
READING OUT THE PREAMBLE OF CONSTITUTION — A HATE SPEECH?
Chandra Shekhar’s counsel, Advocate Mehmood Pracha, argued on the grounds cited by the prosecution for denial of bail. He said the other co-accused, who are facing similar charges, have already been granted bail by the same court. He submitted that the applicant is an advocate by profession, and he only exercised his constitutional right to freedom of speech and expression, while expressing his feelings and opinion with regard to CAA and NRC. He read out the preamble of the Constitution of India outside the premise of Jama Masjid, said Pracha.
Claiming innocence, the defence lawyer submitted his client did not utter a single word either against the nation or against any of the institutions or offices of the country for whom “he has highest regard”. Pointing to the recordings of the incident made by Delhi Police, he said, “In any case of inflammatory speeches or words used, the said material would have been brought to the court which has not been done.” Citing Chandra Shekhar’s medical conditions, the lawyer also submitted that the applicant is suffering from Polycythemia and that he requires regular medical attention.
‘READING OUT SACRED DOCUMENT CAN’T BE INCITEMENT’
Judge Kamini Lau in her written observation said the rival contentions were not disputed. It is also not disputed that the applicant is an advocate by profession, who did not claim that he had any permission to hold the protest and the claims that he had only read out the preamble to the Constitution of India outside the Jama Masjid.
“For the judges, legal persons and the offices under the Constitution, the Constitution of India is a sacred document and if this is correct, then regarding this document cannot prima facie be taken as incitement. The preamble to the Constitution is only a brief introductory statement of the Constitution of India that sets out the guiding purpose, principles and philosophy of the Indian Constitution and it is we, the people of India who are the source of authority of the Constitution. We have declared our country to be a sovereign, socialist, secular democratic republic and to secure to ourselves justice — social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and to promote amongst us all fraternity of status and of opportunity and to promote amongst us all fraternity assuring the dignity of the individual and the unity and integrity of the nation,” she observed.
On the other hand, she said, the applicant specifically affirms that he read out the preamble; whereas, on the other hand, the investigating agency claimed that he had made inflammatory statements, details of which have not been placed on record, so much so that there is no statement of any eye witness to affirm the same.
With regard to the arguments that no permission was taken by the applicant while the call for protest was made, she observed, “…in our democratic set-up, we have a fundamental right to peaceful protest guaranteed by the Constitution, which right cannot be curtailed by the State.”
However, at the same time, she said, the Constitution strikes a fine balance between the rights and duties. “While exercising our right of peaceful protest, it is our duty to ensure that no corresponding right of another is violated and no inconvenience is caused to any more. Violence or destruction of property is totally unacceptable and for any kind of damage to private or public property during the protest, it is the organisers who would be responsible for the said damage and liable to compensate for the said loss. There has to be zero tolerance for any kind of violence, and lawlessness cannot be encouraged. The nation cannot be exposed to anarchy,” the judge observed.
She said there is no material in the form of CCTV footage or audio recordings to prima-facie show the direct involvement of the applicant with the alleged violence, and it is admitted by the investigating agency that the CCTV footage upon which they are placing their reliance is of a very poor quality, which does not even reflect the presence of other accused persons who have already been granted bail.
Coming to the antecedents of the applicant, she refused to note that the latter has nine other FIRs registered against him. “The Hon’ble Supreme Court has directed a closure in FIR no. 280/2019, PS Govindpuri, Delhi and in so far as the other cases are concerned, he is on bail in all such cases since February 8, 2018, and there is no conviction,” she observed.
With regard to the provisions invoked in the case against the accused, the judge said they are by and large bailable and triable by magistrate which are detailed as under sections 147, 148, 149 186, 323, 332, 353, 427 and 436 of the IPC and sections 3 and 4 of the PDPP Act. She said there is no direct evidence so far to book the accused under sections 3 and 4 of the PDPP Act.
The court also considered the arguments related to the medical conditions of the accused and the defence counsel’s submission that the applicant would remain bound by the conditions imposed. Admitting the bail application, the court ordered to release Chandra Shekhar on a personal bond of Rs 25,000 with two sureties and putting out following conditions:
(1) the applicant shall mark his presence before the SHO, PS Fatehpur, Saharanpur, UP on every Saturday for next four weeks.
(2) Keeping in mind the Delhi election, the applicant will not visit the city for the next four weeks as he is neither a permanent resident not an elector in the national capital. He shall inform his schedule to the DCP Crime and SHO, PS Fatehpur, Saharanpur, Utaar Pradesh, whenever he is required to come here for medical treatment. He will be under escort during his stay in the city.
The court clarified that the conditions have been imposed only till February 16, 2020.
(3) The applicant shall surrender his passport, if any, with the investigating officer.
(4) The applicant shall intimate the court in case of change of his address.
