New Delhi: The Delhi High Court Tuesday held that offences under the stringent anti-terror law UAPA are prima facie not made out against Pinjra Tod activists Devangana Kalita and Natasha Narwal, and Jamia Milia Islamia student Asif Iqbal Tanha.
A bench of Justices Siddhartha Mridul and Anup J. Bhambani gave its verdict in three separate but similar orders granting them bail.
The Unlawful Activities (Prevention) Act (UAPA) case against the three pertains to a “larger conspiracy” behind last year’s riots in northeast Delhi being probed by Delhi Police’s Special Cell. The police have claimed the violence that led to the death of 53 people and injured over 500 was not spontaneous but orchestrated.
“In this case, we find that the State’s attempt to show that the accusations made against the appellant are prima facie true, does not commend itself for acceptance,” the judges held, after a detailed examination of the charge sheets filed in the case against the three accused.
“In fact, upon a closer scrutiny of the submissions made on behalf of the State, we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations,” added the court.
The court, however, clarified that this was just a prima facie opinion and that it expected the police to marshal more evidence during the trial.
The bench noted that the two Pinjra Tod activists and the Jamia student did participate in the anti-CAA protests and that the “right to protest” peacefully was not outlawed nor could be termed as a “terrorist act”. However, whether the protests crossed the limit of what is permissible under the law and became non-peaceful was a subject matter of another FIR, in which all the three were already on bail, the court said.
With Tuesday’s order, the three would be finally out on bail, more than a year after they were arrested in the case. Kalita, Narwal, and Tanha are the first ones to get bail on merits in the case. In June 2020, Jamia Millia Islamia student Sarfoora Zargar was granted bail, but on humanitarian grounds, since she was pregnant.
‘Communally surcharged environment was created’
The riots between 23 and 27 February 2020 were allegedly triggered by a clash between the supporters of the Citizenship (Amendment) Act (CAA) and those opposing it.
The Delhi Police, the Crime Branch, and the Special Cell jointly probed the 755 cases registered in connection with the riots. While 697 cases were probed by the northeast district police and 57 by the Crime Branch, one related to the larger conspiracy was looked into by the Special Cell.
Three supplementary charge sheets were filed in the UAPA case against 17 people, including Kalita, Narwal, and Tanha.
Opposing the bail petitions, the Delhi Police had argued that “a communally surcharged environment was deliberately created by the conspirators”, sharply dividing the religious communities to portray the political establishment as inimical to a religious community.
The protest planned was “not a typical protest” normal in the political culture or democracy but one “far eviller and injurious, geared towards extremely grave consequences”, affecting public tranquillity, creating terror, impacting unity and integrity and disturbing even “tempo of the life” of a particular community, it was contended.
‘Country’s foundations on surer footing’
The court, however, felt that the police, in its “anxiety to suppress dissent” and “in the morbid fear that matters may get out of hand,” blurred the lines of constitutionally guaranteed right to protest and terrorist activity.
“If this mindset gains traction, it would be a sad day for democracy,” the court warned.
The judgments also outlined the contours for invoking UAPA. Also, given that the phrase “terrorist act” is wide and vague in the law, the bench advised the subordinate courts to give it a restrictive interpretation and not a wide one that could curtail one’s constitutional rights.
“Having given our anxious consideration to this aspect of ‘likelihood’ of threat and terror, we are of the view that the foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi,” the bench said, brushing aside the police contention that the acts or omissions of the accused may threaten the nation.
Protest doesn’t qualify as an ‘act of terror’
Various sections under the Indian Penal Code (IPC), including sedition, attempt to murder, and murder were invoked against the three accused. Additionally, they were also charged under stringent Sections 15, 17 and 18 of UAPA that deal with terrorist activities.
Statutory restrictions against the grant of bail under UAPA make it tough for an accused charged with the offences to get bail. However, if a court forms a prima facie opinion that evidence is not sufficient to invoke the charges, bail can be granted.
In the case at hand, the HC examined the charge sheets filed against the trio and held there was nothing to show that the three had indulged in a terrorist act or had raised funds or even conspired to commit such an act.
“Accordingly, prima facie we are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found any of the offences defined under section 15, 17 or 18 UAPA,” the court said.
Based on the evidence produced before it, the court opined it would be a “stretch to say that the protest affected the community at large for it to qualify as an act of terror.”
Also, there was no allegation that the arms, ammunition and other articles, that were supposedly to be used as weapons, were recovered from or at the instance of the accused.
In the court’s view, the police charge sheet contained no specific or definite act that could be attributed to the three to show their involvement in the acts of violence.
“In our reading of the subject charge sheet and the material included in it, therefore, the allegations made against the appellant are not even borne-out from the material on which they are based. The State cannot thwart grant of bail merely by confusing issues,” the court said.
On allegations relating to inflammatory speeches, organising of chakka jam, instigating women to protest and to stockpile various articles and other similar allegations, the court said they, “at worst” are evidence to show that the three participated in protests, but not in an act of terror, as understood in the UAPA.
Accused cannot languish in jail
With the court holding that prima facie the offences under UAPA are not made out, the statutory restrictions under the special law against the grant of bail were not attracted against the three accused. Therefore, the court said, they were entitled to bail under the ordinary principles of the Criminal Procedure Code (CrPc).
“In granting bail, the court must keep in mind not only the nature of accusations but also the severity of the punishment and the nature of evidence in support of the accusations. Apart from being prima facie satisfied as regards the charges levelled; the court must also reasonably assess the apprehension of flight risk, evidence tampering and witness intimidation; with careful regard to the genuineness of the prosecution,” the court said.
It noted that there were 740 witnesses in the case and that Covid-19 restrictions on court hearings had considerably slowed down the trial.
“Should this court then wait until the appellant has languished in prison for a long enough time to be able to see that it will be impossible to complete the deposition of 740 prosecution witnesses in any foreseeable future, especially in view of the prevailing pandemic when all proceedings in the trial,” the court said.
As part of bail conditions, it asked each of them to furnish a bail bond of Rs 50,000 and two local sureties of the same amount. Besides, they were told to surrender their passports, reside at the address provided to the police, and inform the agency in case of a change in residence.
Phrase ‘terrorist act’ should be construed strictly
In its judgment, the court noted the phrase ‘terrorist act’ has been given a very wide and even somewhat vague definition under Section 15 of the UAPA.
Upon careful consideration of various top court judgments related to the special law, the bench held that the intent and purpose of Parliament in enacting UAPA and amending it later — 2004 and 2008 — was to bring terrorist activities within its scope. It was and could only have been, to deal with matters of profound impact on the ‘Defence of India’, “nothing more and nothing less,” the court noted.
Therefore, it added, the definition of “terrorist act” must partake of the essential character of terrorism and the phrase cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that get covered under the IPC.
“The court must be careful in employing the definitional words and phrases used in section 15 in their absolute, literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of ‘terrorist act’, without understanding how terrorism is different even from conventional, heinous crime,” it said.
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