Jamia violence case: Delhi HC sets aside trial court order discharging 1 1

NEW DELHI: Setting aside a trial court's decision to discharge Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in the Jamia violence case, Delhi High Court on Tuesday framed charges against them under various provisions of Indian Penal Code.
Pronouncing the verdict, a single-judge bench of Justice Swarana Kanta Sharma said that protest by "violent means" can never be part of democracy.

"Though, in a democracy, there can be no question of dissent being suppressed or the 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," the bench observed in a 90-page judgment.
'Students Knew They Were Trying To Violate Law'
The single-judge bench of Justice Swarana Kanta Sharma of Delhi HC, which pronounced its verdict in the Jamia violence case on Tuesday, observed that video analysis will reveal that the "acts of resistance being presented as normal by the present respondents were not peaceful resistance but a violent protest which had turned into riots".
The court had reserved the judgment passed on Delhi Police's plea against the trial court order discharging the accused in the 2019 Jamia violence case on March 23, 2023 which was pronounced on Tuesday.
The court framed charges against Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Umar Ahmad, Mohammad Bilal Nadeem, Sharjeel Imam, Chanda Yadav and Safoora Zargar under sections 143 (unlawful assembly), 147 (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 his duty) and 427 (mischief causing damage to the amount of fifty rupees) as well as section 3 of Prevention of Damage to Public Property Act.
They have been discharged from the rest of the charges as per FIR since there was not enough material against them to implicate them under the said provisions.
The court, however, framed charges against Asif Iqbal Tanha, Mohammad Abuzar and Mohammad Shoaib under section 143 (unlawful assembly) of IPC and discharged them from other charges.
Additional solicitor general (ASG) Sanjay Jain, appearing on behalf of Delhi Police, submitted before the bench that the order of the trial court dated February 4, 2023 suffered from material infirmities and irregularities, and at the stage of framing of charges, trial courts cannot indulge in conducting a "mini trial" by determining the pros and cons of the case and as to whether it would warrant a conviction or not.
"It is stated that credibility of evidence, especially the statements of witnesses, cannot be gone into at the stage of framing of charge as the same can only be tested at the stage of trial. It is argued by the learned ASG that there is sufficient evidence against all the respondents herein for the purpose of framing charges and conviction can take place even solely on the basis of testimony of the police witnesses. A reference has also been made to the 'memo of evidence' against respondents provided in the present petition," the bench noted.
Asserting that assemblies cannot be aimed at destroying the rights of others to achieve their own and the right to freedom of peaceful assembly cannot be aimed at destruction of rights and freedom of others who were not part of that protest, the bench said: "The violent intention and behaviour of the assembly was difficult to discern ahead of their so turning violent. Though the state has to be accountable for their action in case they infringe on the fundamental right of freedom of speech and expression and use of excessive -- disproportionate to the threat at the spot -- force, if any, the protesters also are accountable under the Constitution and the duty which runs parallel to their fundamental rights to ensure that the assembly had to be peaceful and by peaceful means and not in violation of law of the land."
Pointing out that the announcements made through a loud hailer indicate that it was not a peaceful assembly to attract protection under the Constitution, the court said the video clips on record show the subsequent violent conduct of the unlawful assembly and its members forced the police to ask the assembly to disburse but to no avail.
The bench said that while the freedom to choose the location or route of an assembly in a public accessible place may, on most occasions, be a legitimate right, the participants have an equal duty to ensure that they should not infringe on the right of other individuals to life and protection of their life and property. "The peaceful assembly has no right to damage public or private property and disrupt organised day-to-day life of other citizens who are not part of the protest."
The bench observed that the students knew that they were trying to violate the law by insisting on moving towards a particular area, breaking barricades and putting property on fire, and pelting stones. The judge said the police were being targeted with stones.
"No doubt they (students) can also express their views, even if the views are unpopular, like other citizens but the law protects the right to express one's views and protest peacefully but does not protect or guarantee the right to protest and demonstrate violently, threaten the safety of others and damage public property or threaten and damage their own campus and personal safety of others, including the law-enforcing agency," the court noted.
The court observed that the protesters had turned violent and started pelting stones, breaking barricades, standing on the barricades and pushing the barricades against the police officers. This showed a crisis or emerging of a situation which could have affected the population and constituted a threat to the organized life of the citizens which the State is bound to protect, it said.
"Therefore, essentially, though the fundamental right of the assembly that the accused were part of, had to be respected and protected, the State could not have compromised on its fundamental duty to protect other citizens' their human rights and their commitment to ensure rule of law with the aid of constitutional and other legal provisions governing the exercise of such powers by the State."
The bench said that the crowd turning violent and marching towards a curfew-bound area had given rise to apprehension and fear which necessitated restricting their movement to the area where they had assembled and they were told that they can peacefully protest there.
Taking up the issue of the third chargesheet filed by Delhi Police, the ASG submitted that the trial court had taken contradictory stands in so far as the third supplementary chargesheet was concerned. On one hand, the court observed that the said chargesheet was an afterthought and ought not to be considered, on the other, it has "conveniently relied upon its contents to arrive at a finding that no case was made out against the respondents".