Sharjeel, Safoora to face charges in Jamia clash case
The court said that prima facie, as seen in the video evidence, the accused were part of the first line of the mob and were raising slogans against the Delhi Police, adding that they consciously chose to be a part of the unlawful assembly.
The Delhi high court on Tuesday set aside the trial court’s order discharging Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha, and eight others in the 2019-Jamia violence case while ordering to frame charges for unlawful assembly and rioting, among other offences, against them.
Justice Swarna Kanta Sharma, in her judgment, said that “in a democracy, though there can be no question of dissent being suppressed, there is no place for violent collective action to register one’s anguish against ideological differences or government policies”. She added that “protest by violent means can never be part of democracy”.
The court said that prima facie, as seen in the video evidence, the accused were part of the first line of the mob and were raising slogans against the Delhi Police, adding that they consciously chose to be a part of the unlawful assembly.
“The video analysis will also reveal that the acts of resistance being presented as normal by the respondents were violent, which turned into riots,” the court said in a 90-page judgment.
The FIR in the case was lodged after violence broke out near Jamia Millia Islamia on December 13, 2019, when a gathering of approximately 700-800 people protested the Citizenship Amendment Act (CAA). The police indicted 12 people, including Imam, Tanha, and Zargar, under various sections of the Indian Penal Code (IPC) and the Prevention of Damage to Public Property Act.
On February 4, the trial court discharged 11 accused, including Imam, Zargar, and Tanha. The Delhi Police then approached the high court challenging the order. The trial court, however, ordered framing charges against one of the accused, Mohammad Ilyas.
Overturning the trial court’s verdict, justice Sharma ordered framing charges against Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Umar Ahmad, Mohd Bilal Nadeem, Sharjeel Imam, Chanda Yadav, and Safoora Zargar, under unlawful assembly, rioting, obstructing a public servant from discharging duties, criminal force/assault and causing mischief/damage of the IPC, as well as Section 3 of Prevention of Damage to Public Property Act.
The court framed charges against Mohammad Abuzar, Mohammad Shoaib, and Tanha for only unlawful assembly, noting that there is not enough material to implicate them under the other sections mentioned in the charge sheet.
In its plea, the Delhi Police listed remarks of the trial court that criticised them for initiating the prosecution against them in a “perfunctory and cavalier fashion”. Additional sessions judge Arul Varma had remarked that the right to dissent was part of fundamental protections under the Constitution, adding that such police actions are detrimental to the liberty of the citizens who exercise their right to protest peacefully.
Expunging the remarks made by the trial court, the high court said that the observations regarding dissent being suppressed by the State should have been avoided as it would not have been clear to the judge himself as to whether it was the peaceful dissent or the spread of violence that was being suppressed by the State. The court said that a emerged when the protesters insisted on violating the law and started marching to curfew-bound Parliament.
Saying that “assemblies cannot be aimed at destroying the rights of others to achieve their own rights”, the court emphasised that “the right to freedom of peaceful assembly cannot be aimed at the destruction of rights and freedom of others not part of that protest”.
The court also agreed with the submission of the Delhi Police that the second charge sheet had explicitly indicated the possibility of filing a third supplementary charge sheet, given the ongoing investigation. However, it was not accepted. “The observations of the trial court that no fresh evidence was placed on record by way of third supplementary charge sheet do not find favour with this court,” the court said.
It noted that through the third supplementary charge sheet, further evidence with respect to Tanha was brought on record as he had posted photographs of the incident on his Facebook account on December 13, 2022, and had written how he and others were arrested while marching towards the Parliament, which was a new fact informed to the court.
The judge also said that information was awaited from Facebook even at the time of filing the third supplementary charge sheet, as the police informed the court that a notice under Section 91 of the CrPC was issued to Facebook regarding the authenticity of the same.
Judge Arul Varma, in his discharge, had highlighted that the police and investigating agencies need to know the difference between dissent and insurrection, that though insurrection must be “quelled indisputably”, dissent should be given space as it is reflective of something which pricks a citizen’s conscience.
Meanwhile, on the overturning of the verdict, Imam's counsel Ahmad Ibrahim, expressing disappointment, said “we were not expecting such a judgement from the HC. We will be challenging the same before the Supreme Court at the earliest.”