Jamia Violence: HC Says Won't Expunge Trial Court Observations Against Police at ‘This Stage’

New Delhi: The Delhi High Court on Monday refused to expunge at this stage observations made against the police by a trial court while discharging student activist Sharjeel Imam and others in a 2019 Jamia Nagar violence case but said the observations will not affect further investigation or trial of any accused.

The high court issued notices to student activists Imam, Asif Iqbal Tanha, Safoora Zargar and others seeking their response to Delhi Police's challenge to their discharge in the case.

Additional Solicitor General Sanjay Jain, representing Delhi Police, urged the high court on Monday to expunge the remarks made by the trial court, arguing that the case concerned an unlawful assembly turning violent and not “right to dissent”.

 “There is nothing before the trial court to disregard the third supplementary charge sheet. Observations are going to influence and be detrimental to any further investigation,” Jain said.

The senior law officer also contended that the observations made by the trial court could not have been passed at the stage of framing of charges.

Justice Swarana Kanta Sharma said at the present stage it was not expunging the observations but ordered, “Observations made against the investigating agency will not affect further investigation or trial of any accused”.

The matter would be heard next on March 16.

The trial court had in its February 4 order discharged 11 people, including the respondents, while holding that they were made "scapegoats" by police and that dissent has to be encouraged, not stifled.

The FIR was lodged in connection with the violence that erupted after a clash between police and people protesting against the Citizenship Amendment Act (CAA) in the Jamia Nagar area here in December 2019.

The police, in its revision petition, has said the trial court's order is in the teeth of well-settled principles of law, suffers from grave infirmities which go to the root of the matter and is perverse.

The police plea said the trial court has not only discharged the accused but was also swayed by "emotional" and "sentimental feelings" and has cast aspersions on the prosecuting agency and passed "gravely prejudicial" and "adverse" remarks against the prosecuting agency and the investigation.

 “The trial court, while not considering and weighing the evidence on record, has proceeded to discharge the respondents (accused) at the stage of framing of charges.

"The trial court erred in not only holding a mini-trial at this stage but also recorded perverse findings which are contrary to the record to arrive at the finding that a case of discharge was made out against the respondents,” the petition said.

It added that at the stage of consideration of an application for discharge, the trial court has to proceed with an assumption that the materials brought on record by the prosecution are true and not go deep into the matter as if to decide the issue of conviction.

The police said the trial court’s order would show that it has proceeded to make observations on the merits of the matter.

It said the trial court has erred in observing that the respondents were mere onlookers or by-standers and therefore mere presence of a person at the protest site was insufficient to sustain an allegation qua the person being a member of such an assembly.

Imam was accused of instigating the riots by delivering a provocative speech at the Jamia Milia University on December 13, 2019. He will continue to remain in jail as he is an accused in the larger conspiracy case of the 2020 northeast Delhi riots.

In its order, the trial court had said there were admittedly scores of protesters at the site and some anti-social elements within the crowd could have created an environment of disruption and havoc.

Noting that the accused were merely present at the protest site and there was no incriminating evidence against them, the trial court had said dissent is an extension of the fundamental right to freedom of speech and expression, subject to reasonable restrictions.

It had said investigative agencies need to discern the difference between dissent, which has to be given space, and insurrection that should be quelled.

It also faulted the police for failing to produce any WhatsApp chats, SMS or other proof of the accused interacting with each other and criticised it for "arbitrarily" choosing to array some people from the crowd as accused and police witnesses, saying this "cherry-picking" by the police is detrimental to the precept of fairness

While discharging the 11 accused, the trial court ordered the framing of charges against one of the accused, Mohammad Ilyas.

The Jamia Nagar police station had filed the charge sheet against Imam, Tanha, Safoora Zargar, Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Mohammad Abuzar, Mohammad Shoaib, Umair Ahmad, Bilal Nadeem, Chanda Yadav and Mohammad Ilyas.

The charge sheet was filed under various sections of the IPC, including 148 (rioting, armed with a deadly weapon), 186 (obstructing public servant in discharge of public functions), 353 (assault or criminal force to deter public servant from discharge of his duty), 308 (attempt to commit culpable homicide), 435 (mischief by fire or explosive substance with intent to cause damage), 323 (voluntarily causing hurt), 341 (wrongful restraint) and 120B (criminal conspiracy).

The charge sheet also included provisions of the Prevention of Damage to Public Property Act.