Protest by violent means can never be part of democracy: Delhi HC sets aside trial court order discharging Sharjeel Imam, 10 others

The HC ordered framing of charges against Imam, Safoora, Mohd Qasim, Mahmood Anwar, Shahzar Raza Khan, Umar Ahmad, Mohd Bilal Nadeem and Chanda Yadav under sections 143 (punishment for unlawful assembly), 147 (punishment for rioting), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object), 186 (obstructing public servant in discharge of public functions), 353 (assault or criminal force to deter public servant from discharge of duty), 427 (mischief causing damage to amount of fifty rupees) of IPC. The court also charged these accused under the offence of mischief causing damage to public property under The Prevention of Damage to Public Property Act.

While discharging them for offences in other sections, including attempt to commit culpable homicide (308); criminal conspiracy (120B); and wrongful restraint which were part of the chargesheet, the HC said that there wasn’t enough material to implicate them.

The court ordered framing of charges against Tanha, Mohd Abuzar and Mohd Shoaib under IPC section 143 (punishment for unlawful assembly) only, saying there was not “enough material” against them in other sections.

The HC went through 11 video clips of the incident and observed that “the crowd can be very clearly seen turning violent and pelting stones at police, raising anti-police slogans such as ‘Delhi Police Murdabad’, also putting private and public vehicles on fire and hitting the barricades against police persons who had declared their assembly as unlawful”.

“The main aim of their initial protest against the government policy was lost in the violence and in their persistence to break the law to reach a curfew-bound area (Parliament) by use of violence and force against people and objects. Use of force and violence by the mob is sufficient, at prima facie stage of framing of charge, for constituting offence of unlawful assembly and rioting,” it said.

With respect to Sharjeel, the court said his speech of December 13, 2019, was “provocative” and he “himself talked about ‘destruction’ and also said those who were protesting should know as to what they should do for the protests and should be ready to take blows of lathis”.

“He can be clearly seen instigating the mob, preparing them for further action… he says on 13.12.2019, there were 3,000-4,000 persons gathered at the spot as they had been distributing pamphlets for last two weeks, and thus, it can only be imagined as to how many people could gather on the day of jumma (Friday) next week. It is, thus, clear he had common intention and he was part of the overall intent and object of the unlawful assembly,” the HC said.

The court noted that while Imam was a student of JNU and not Jamia, his presence there was not illegal, however, his speech at Jamia was provocative and it shows that “he was also part of the mob which was instigating and provoking which he also admits on 16.01.2020 in his speech at Aligarh Muslim University”.

On Tanha, the HC said he had himself posted photos in December 2022 on his Facebook account, and can be seen to be a part of unlawful assembly, which he does not deny. The HC remarked that his “active participation” with the crowd by his own admission became available to police through social media posts as police were still investigating and trying to identify the accused, participants as well as injured. The HC, however, observed there is “no clear indication” by any witness statement or through video/ photograph to show Tanha was a “part of any violent mob or had damaged property”.

On Safoora’s contention that two witnesses who were not present at the site had identified a woman whose face was covered as her, the HC said “holding at this stage that independent public witnesses have given false statements will be against settled principles of law at stage of charge”.

Perusing clip number nine, the court said it is not a case “where no overt act can be attributed to the present respondent as the video clip clearly reveals that the woman who is in mask, identified by the public witnesses”, who are employees of Jamia, as Zargar can be seen to be at the “forefront of a violent mob” which by no stretch of imagination can be said to be a protest by peaceful means.

The court also observed that protesting students “knew they were trying to violate the law by insisting on moving towards that area and breaking barricades” as police can be seen trying to reason with protesters by announcing that Section 144 CrPC had been imposed. The court further observed that in this case, “the police was being targeted by pelting stones”.

“Protest by violent means can never be part of democracy. Though, in a democracy, there can be no question of dissent being suppressed or fundamental right of freedom of expression by peaceful means being infringed, however, at the same time, there is no place for violent collective action to register one’s anguish against ideological differences or resistance to a government policy. Video analysis will also reveal acts of resistance being presented as normal by present respondents were not peaceful resistance but violent protest which had turned into riots,” it said.

As per the chargesheet of the Delhi Police, the accused were booked under sections 143 (punishment for unlawful assembly), 147 (punishment for rioting), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object), 186 (obstructing public servant in discharge of public functions), 353 (assault or criminal force to deter public servant from discharge of duty), 427 (mischief causing damage to amount of fifty rupees) 308 (attempt to commit culpable homicide), 323 (punishment for voluntarily causing hurt), 341 (punishment for wrongful restraint), 435(mischief by fire), 332(voluntarily causing hurt to deter public servant from his duty), 333 (voluntarily causing grievous hurt to deter public servant from his duty), 435 (mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees, 120B (criminal conspiracy), 34 (common object) of the IPC.