A bench of Justices K S Mudagal and Venkatesh Naik T was hearing the bail plea of one Wajid Pasha KM who was allegedly a part of a mob, which took part in rioting and arson at a police station in Bengaluru in 2020. Pasha sought bail on ground that his fundamental rights were violated.
Case
According to the prosecution, one Wajid Pasha KM, 5, who hails from Bengaluru was part of a mob comprising over 145 people who indulged in rioting, arson, vandalism and also attacked DJ Halli police station over a religious post on a social media platform.
The allegations against accused is that being the member of such “terrorist gang” he conspired with co-accused, mobilised people, provoked them, gave them directions to get petrol, burn the police station and police, which led to violent acts of damaging the property in the police station, obstructing the police from performing the duties and pouring petrol on vehicles and burning them.
The accused along with 145 others have been named in the chargesheet for the offences punishable under provisions of the UAPA, 1967, Sections 143 (unlawful assembly), 147 (rioting), 436 (mischief by fire or explosive substance), 353 (Assault or criminal force to deter a public servant from discharging their duty) and provisions of Karnataka Prevention of Destruction and Loss of Property Act, 1981 (for short ‘KPDLP Act’).
The accused approached the trial court seeking bail where he claimed that he was falsely implicated in the case and has been in judicial custody for over five years without trial.
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Earlier this year, the trial court rejected his bail application on multiple grounds including- there is material to show the involvement of the appellant in the crime, delay in trial is because of the calculated acts of the accused himself and Section 43D(5) of UAPA bars grant of bail.
Observations
The bench noted that the man sought bail on the ground that his fundamental right to liberty under Article 21 of the Constitution is violated.
Referring to the father of the nation, the bench said that Mahatma Gandhi had also said that “right is duty well performed”.
“He gets that right only when he adheres to his fundamental duties, encapsulated in Article 51A of the Constitution,” the court said.
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There is prima-facie material to show that the appellant had indulged in vandalizing the police station, assaulted the police to obstruct them from discharging their duties and caused them injuries, indulged in damage to the public properties and violence denting harmony amongst the people on religious lines, the bench said.
The court said that in breach of these fundamental duties and having delayed the proceedings by filing various applications, he cannot seek benefit of Article 21 of the Constitution.
There is no merit in the contention that the order of the trial court is unsustainable, the court said.
Referring to the trial court’s order, the bench said that the accused have delayed the trial by repeatedly filing applications and such applications were filed consecutively by each of the accused, though common advocate was representing the same set of accused.
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Rejecting the delay in trial as grounds for bail, the bench said that this cannot be attributed either to the prosecution or to the trial court and the accused being themselves responsible, cannot seek bail.
Not finding any merit in the argument of parity as grounds for bail, the bench said that the present accused’s case and his overt acts are totally different.
According to the statements of the witnesses, the appellant gave a provocative interview to a Youtube channel inciting the viewers and crowd against the police. Hence, the trial court was justified in holding that there was prima-facie material against him, the court noted.
Arguments
Advocate Siddika Aisha, Pasha’s counsel, argued that he was falsely implicated in the case and is in custody without trial for over five years now.
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She also contended that the co-accused is granted bail, therefore, the appellant is also entitled to bail.
Opposing the submissions, special public prosecutor advocate P Prasanna Kumar said that there is sufficient material to show involvement of the appellant in “antinational activities”.
He submitted that the appellant did not even spare the police, the police station and the delay in trial is not due to any act on the part of the prosecution, it was the strategy of the accused.
