(The Delhi High Court on Friday, 10 February, permitted urgent listing of Delhi Police’s plea against a court order discharging Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in a Jamia violence case. This piece was originally published on 5 February. It is being republished in order to contextualise what the order (now being challenged) said and why it matters.)
The Judge cannot act merely as a post office or a mouthpiece of the prosecution at the stage of framing of charges
This is a sentiment that has been reiterated in a flurry of Supreme Court judgments.
And yet, frequently enough, liberty is sacrificed at the altar of technicalities. On the basis of mere assertions made by the state — which is undoubtedly (in most cases) much more powerful and resourceful than the accused. And under-trials continue to languish in prisons, and courts remain flooded with pleas, while justice lumbers painstakingly under the weight of far too many ongoing cases.
(Undertrials constitute 77.1% of the total prison population; and as of May, last year a total of 4.7 crore cases were pending in courts across the country.)
So when a court decides to not act as a mouthpiece, it deserves talking about.
Quote by Arul Varma, Additional Sessions Judge and Special Judge (NDPS) in order discharging Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar and eight others in a Jamia violence case.
On Saturday, 4 February, Arul Varma, Additional Sessions Judge and Special Judge (NDPS), discharged Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar and eight others in a Jamia violence case and made reasons for the order amply clear. These include:
MERE PRESENCE AT A PROTEST SITE: INSUFFICIENT TO ARRAY PROTESTERS AS ACCUSED
The apex court (in Musa Khan vs State of Maharashtra) is known to have said that “a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time…is in law guilty of every act committed by it from beginning to the end…”
Quoting the same, the court pointed out that a perusal of the material on record indicates that although the accused were present at the spot, they were not part of the unlawful assembly.
“No overt act or participation in the commission of the offences was attributed to them,” the special judge noted.
“Thus, mere presence of the accused at the spot sans any overt act, cannot inculpate them.”
NO EVIDENCE SUGGESTING COMMON OBJECT
Noting that chargesheets “definitely cannot be filed on the basis of probabilities”, the court added that the chargesheet in this case fails to elaborate what inculpatory or unlawful common object has been attributed to the accused.
“Also, there isn’t an iota of evidence qua sharing of the common object with each other, and with the crowd in general.”
PRIMA FACIE PROOF OF CONSPIRACY?
“The chargesheet does not even contain a whisper or insinuation that the accused persons acted in tandem or that they coalesced at the spot after confabulating to do so."
The court noted that the prosecution did not place on record any Whatsapp chats, SMSes, proof of the accused persons interacting with each other — “no ‘toolkit’” even — to lend credence to the assertions that the accused acted in concert.
“Even in the photographs, all the twelve accused are not standing side by side,” the court added. Thus, it observed that the conspiracy charge too is unsustainable.
FAR TOO MANY CHARGESHEETS
The court noted with dismay that the prosecution did not end with filing of one chargesheet and two supplementary chargesheets.
“…a third supplementary charge sheet was filed…a day before the conclusion of arguments qua the aspect of charge.”
Additionally, “no leave of the court was taken for filing of the same.”
The court also observed that the third supplementary chargesheet did not carry fresh evidence, but only “sought to present the same old facts in the garb of ‘further investigation’…”
“This filing of a slew of chargesheets must cease, else this juggernaut reflects something beyond mere prosecution, and would have the effect of tramping the rights of accused persons.” Arul Varma, Additional Sessions Judge and Special Judge (NDPS).
RIGHT TO DISSENT
In its conclusion, the order quotes Mahatma Gandhi, as it attempts to draw a distinction between dissent and insurrection — a distinction that the State should ideally be mindful of.
The court also recalled the present Chief Justice of India DY Chandrachud’s emphatic defence of dissent:
“The destruction of spaces for questioning and dissent destroys the basis of all growth — political, economic, cultural and social. In this sense, dissent is a safety valve of democracy.”DY Chandrachud
WHY THIS ORDER MAKES SENSE -- LEGALLY
Critics of this order might go on to allege that the court delved too deeply in the matter at the stage of framing of charges. They will also not be wrong if they quote the apex court as having said that for a court cannot conduct “a mini trial to find out the guilt or otherwise of the accused” at the discharge stage.
But one has to recall, that the apex court has also said (in P Vijayan v State of Kerala) that the judge “has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on…” — as opposed to just being a mouth-piece!
The apex court has added:
“If two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.”
What this essentially entails is, that mere suspicion isn’t enough to subject an accused to a trial. The judge has to reflect on the material at hand and decide if there’s even enough ground to sustain the charges. Anything less than that can result in a gross violation of right to liberty. Besides, as articulated by the present CJI:
“Our courts must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”
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