Abdul Bari Masoud analyses the February 4 judgement delivered by Additional Sessions Judge Arul Varma of Saket Court, Delhi, exonerating 11 accused in the Jamia Millia Islamia violence case and chastising the police force for ‘utilising the accused as scapegoats’ and for failing to capture the ‘actual criminals’.
In yet another blow to the Delhi Police, a Delhi court not only exonerated 11 accused in the Jamia Millia Islamia violence case but also chastised the force for failing to capture the “actual criminals.”
Not only did the court declare the prosecution to be vicariously guilty, it also ruled that the freedom to protest is an extension of the basic right to free expression.
In the December 2019 Jamia violence case, student leaders Safoora Zargar, Sharjeel Imam, Asif Iqbal Tanha, and eight others were acquitted on February 4. While delivering the judgment, Additional Sessions Judge Arul Varma of Saket Court observed that the Delhi police “certainly succeeded in utilising them (the accused) as scapegoats,” and he held that the force was unable to capture the “actual criminals.”
The order stated that there was no prima facie proof that the accused were involved in the mob violence, were in possession of any weapons, or were throwing stones and the Delhi Police had made them a “scapegoat”. During the demonstrations against the Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) that year, an FIR was filed against them, accusing them of rioting and unlawful assembly.
The judge further reprimanded the prosecution for presenting “ill-conceived charge sheets,” adding that the police had “arbitrarily selected” some protesters to list as police witnesses and others to be charged on the charge sheet. Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Mohd Abuzar, Mohd Shoaib, Umair Ahmad, Bilal Nadeem, and Chanda Yadav are the other “accused” who were also freed in this case. However, it has framed charges against Mohammad Ilyas in this case.
The case dating back to 2019 was heard for more than a year. While the prosecution allegedly tried interminable delays by filing multiple charge sheets, the judge forced them to argue on charge framing. This order in the discharge application was made for the presentation and response of these arguments.
Although there are numerous cases pending against some of these defendants, this one is specifically related to the violent occurrences that took place at Jamia Millia Islamia in December 2019. Sections 143, 147, 148, 149, 186, 353, 332, 333, 308, 427, 435, 323, 341, 120B, and 34 of the Indian Penal Code (IPC) were cited in the FIR as “rioting and unlawful assembly” offences.
On April 21, 2020, the police had initially submitted a charge sheet against Mohammad Ilyas. Then, 11 more suspects were named in a second supplementary chargesheet, and they were all later cleared in the case. On February 1, 2023, a third supplementary chargesheet was also submitted while the case was being heard.
THE CASE
According to the prosecution, information was received on December 12 that the Jamia Millia Islamia students gave a call for a rally at Gate No. 7 on December 13 and a march towards Parliament House. The whole South and South-East District police force was reportedly mobilised and deployed in the area of the Jamia Millia Islamia about 10 a.m.
The prosecution claims that at around 2 p.m., 700 to 800 persons, largely college students and inhabitants of Jamia Nagar, started moving towards the barricades close to the Y point of Sukhdev Vihar. The prosecution further asserted that prohibitory orders under Section 144 of the Criminal Procedure Code (CrPC) had been issued, ordering the demonstrators to stop and refrain from marching towards Parliament, and that the Parliamentary Session had been postponed sine die.
According to the prosecution, protesters were yelling anti-Government and then recently approved Citizenship Amendment Act (December 2019) slogans. Some protesters “forcefully” stormed through Gate No. 1’s initial line of policemen manning the barricades. Aam Aadmi Party and Congress leaders, among others, started addressing the audience and pushing against the barricades at that particular gathering.
Loudspeakers were used to issue instructions and warnings to the throng, cautioning them against marching to Parliament since Section 144 was in effect. Protesters “smashed past the second line of barriers at Holy Family Road Y Point, Sukhdev Vihar,” however, as the demonstration descended into violence.
The prosecution contends that after repeated warnings, the demonstrators did not disperse but instead grew angrier and eventually threw stones at the policemen. After several warnings, the crowd was dispersed using light force and gas shells. The crowd then moved towards the vicinity of the university and began to pelt the police party with stones. The prosecution further alleged that a call for outside force was made, and reserve force was sent to the site, in order to stop further harm being done to public property and lives. The cops were able to control the hostile throng after what is said to have been a nearly two-hour-long struggle.
DEFENCE COUNSEL’S ARGUMENTS
The defence lawyer fiercely denied the accusations made by the prosecution. They argued that the present case is one in which the accused should be released. Written arguments and representations were made on behalf of each of the defendants, with the general theme being that while the defendants could be considered to have participated in the gathering at the venue mentioned by the prosecution, they did not actually attend it. There was no way to prove it, and there weren’t even any witnesses who could link them to the violence that occurred.
Asif Iqbal Tanha’s defence team argued that his presence at the Jamia Millia was only normal given that he is a student there. There isn’t even the slightest bit of tangible evidence – photographs, videos, or eyewitness testimony – that would show the accused was involved in the alleged crimes, other than his presence and his incarceration at the Badarpur police station.
It was argued on behalf of the other accused Sharjeel Imam that his speech on December 13, 2019, was undoubtedly given after the alleged riots, at around 7:30 p.m. Additionally, it was claimed that he was present at the scene from 1:57 PM until 3:51 PM, according to the CDR’s evidence. However, the prosecution argued that the protesters did not arrive at the scene until after 3:30 PM. It was therefore proven that the accused was not a member of the gathering that later became unlawful because records proved that he left the area within 20 minutes of the incident.
It was argued on behalf of the accused Kashmiri student activist Safoora Zargar that the charge sheet does not clearly state when or how the students gathering changed into an unlawful assembly. It was claimed that none of the videos showed Ms. Zargar; rather, Safoora Zargar was only ever represented by a woman with a scarf covering her face. It was argued that the accused’s presence in the area was shown by her call data records (CDRs), which showed that she lived in the nearby Ghaffar Manzil in Jamia Nagar.
THE ORDER
In its order, the judge noted that the prosecution filed one charge sheet initially and three supplementary charge sheets afterwards. The third supplementary charge sheet was submitted a day before the completion of final arguments on the charge-related matter. He also pointed out that no request for court permission to file the document was made.
The court found that the second charge-sheet was only issued after reconsidering the evidence gathered for the first charge-sheet. Contrarily, the court noted that the third additional chargesheet shows that the very same photos, which are already part of the record, have been filed as evidence. These witnesses’ previously recorded statements have had their statements re-recorded.
In other words, the court found that the investigating agency had not presented any new evidence, but rather had attempted to present the same old facts by filing an additional charge sheet under the guise of “further investigation.” The Delhi police violated the law by filing not one, not two, but three supplementary charge sheets, and the court has commented on this without really adding anything new. The court noted that the sheer presence of individuals at a protest site without any proof of overt acts of violence cannot result in the inference that those individuals are “accused” in such a case.
The judge further ruled that all of the charges against the accused have been brought up ex facie in a “perfunctory and cavalier manner.” Furthermore, it was decided that subjecting such people to a protracted legal process is not good for our country’s criminal justice system or due process. The court ruled that in the present case, the prosecution’s memo of evidence clearly outlines the roles played by each of the 12 accused, whereas all of the accused people’s written submissions make reference to the fact that, despite their presence at the scene, they were not a part of the unlawful assembly.
The Court’s order was a categorical “no” when it came to the matter of whether the defendants in this case were even initially complicit in taking part in the mayhem. The Court came to the opinion that the police had successfully used the individuals in this case as scapegoats notwithstanding their inability to catch the true criminals behind the commission of the crime after reviewing the charge sheet and three supplementary charge sheets.
Commenting on the Delhi Court’s observations in the Jamia case, noted public interest lawyer and activist Prashant Bhushan asked when the heads of many police officers should roll on in the light of the judgment. Bhushan tweeted that “Heads of many police officers should roll on this. But they are protected by the govt”
Heads of many police officers should roll on this. But they are protected by the govt pic.twitter.com/WPKEVAcNNr
— Prashant Bhushan (@pbhushan1) February 5, 2023
While Advocate Fawaz Shaheen termed the court order as a significant confirmation, saying what we have been arguing for the past three years, which is that these prosecutions are simply an excuse for the government to harass students and other people it views as dissidents. Speaking with Radiance, Fawaz said the order clearly states that even after filing three chargesheets, the police could not even show any evidence to merit a trial in the court.
Unfortunately, this case is only symptomatic of a larger phenomenon of ‘process as punishment’, where cases are filed by the police not for punishing a crime but for creating a particular narrative or creating a deterrent against voices that are considered politically inconvenient or undesirable, he underlined.
Although the judge harshly criticised the police handling of the case, no effort was made to restore justice by punishing the officers who had initiated the case or providing compensation to the accused, who had to endure three years of mental harassment and distress, said Fawaz and warned that such bogus cases will continue to be filed unless the judiciary takes proactive remedial action.