Updated: August 12, 2021 7:35:32 am
A Delhi court has granted bail to Supreme Court lawyer and former BJP spokesperson Ashwini Upadhyay, who was arrested in connection with alleged inflammatory and anti-Muslim slogans raised at Jantar Mantar.
Link Metropolitan Magistrate Udbhav Kumar Jain, in his order, observed, “Conspiracy is no doubt hatched behind closed doors and the investigation in the present matter is at a nascent stage; that, however, does not imply that liberty of a citizen be curtailed on mere assertions and apprehension.”
The court held that as far as the offence under IPC Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) is concerned, “except for mere assertion, there is nothing on record to show that the alleged hate speech to promote enmity between different groups was done in the presence or at the behest of the applicant/accused”.
“Even during hearing, this court has inquired from APP and, so far, there is nothing against the accused in the alleged video. It is not the case where there are chances that applicant/accused will abscond,” it said.
The court agreed with the prosecutor that it is a “difficult time for everyone during this pandemic and serious view should be taken against those who violate guidelines/restrictions to curb this pandemic”. “Yet the offences as far as breach of these guidelines are concerned are bailable in nature, which can be dealt by the trial court on merits,” the court said.
Upadhyay was released on bail subject to furnishing a personal bond of Rs 50,000 with one surety of the like amount.
Delhi Police opposed the bail application and told the court that Upadhyay was a speaker at the event and whether he was present during the time of sloganeering is under investigation.
Senior advocates, Vikas Singh and Siddharth Luthra, and advocate Ashwani Dubey, argued on behalf of Upadhyay.
Singh told the court that Upadhyay was not present at the time of the incident, as per the timing of the videos that went viral, and informed that he was in Ghaziabad. “I will be the last person to represent somebody who made such reprehensible slogans. If the allegation was, I was the organiser and this took place in front of me, I would not have represented him… He is a very respected person… It is a very serious case. Police can’t indiscriminately arrest him. He should be released today. This is an illegal incarceration,” Singh told the court.
Luthra said, “Very often in life we may be a part of a public function, that does not mean that if a fracas breaks out when we are not there, we should be held responsible. That should not be held against him.”
Additional Public Prosecutor Sikhar Mahajan told the court that the gravity of the offence and the sensitivity of the case have to be looked into. He said at the time when Covid-19 restrictions were in place, the monsoon session was underway as were preparations for Independence Day celebrations.
“They should have been calculative while arranging this gathering. It was to create a ruckus, what was the need to do this at this time? They did not have permission. They did not respect the DCP order. Policemen on the ground had been telling them about social distancing and wearing masks but they were disobeyed,” the prosecutor told the court.
Mahajan told the court that Upadhyay was a speaker at the event and his involvement must be looked into: “Look at their involvement. They are saying he was present. He said he was a speaker. There is an admission. Whether he was there or not during the hate speech, we don’t know but he was a speaker.” The prosecutor said Upadhyay should have first complained to police, which instead undertook this case on its own. He said videos investigated by the investigating officer contained hate speech which was evident.
“His version is that he had left. When he left is a matter of investigation. There is no evidence as such that he left. It is their version. Exactly what is the nexus, who gave the speeches? We are at a nascent stage of the investigation,” he said.
Singh told the court, “You pick anyone that cannot be justified. We were saying we are not involved in the incident. Look at the video footage. It is against the rule of law to arrest anyone. Tomorrow you will pick me up saying someone made hate speech and we will arrest you. There is no link between us.”
Dubey also rebutted the prosecutor’s claim that Upadhyay did not bring the incident to the notice of police: “Upadhyay wrote an email to the DCP to arrest these persons. He eventually gave a three-page letter and pen drive to police… It is not that he has no respect for law.”
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