Elgaar Parishad- Sharjeel Usmani To Appear For Investigation On March 18

A division bench of Justices SS Shinde and Manish Pitale was hearing a petition by Usmani seeking quashing of the FIR filed against him at Swargate Police station, Pune, under section 153A (Promoting enmity between different groups on grounds of religion, race, place..) of the IPC on a complaint by the secretary of the Bhartiya Janta Yuva Morcha, Pradeep Gawade. Gawde is a former member of ABVP.

During the hearing on Monday, senior advocate Mihir Desai submitted that Sharjeel had appeared before investigators, as promised in the last hearing. He said Sharjeel was not denying his speech, but the question is, would it constitute an offence u/s 153A of the IPC. "He has used some harsh words in his speech, words I would not have used. But the speech needs to be seen as a whole," Desai argued.

Justice Shinde then began reading from a translated copy of the speech, in which Sharjeel says he doesn't have faith in the judiciary and that the country is in a State of war.

"I started by saying the speech has certain harsh words…" Desai said.

Justice Shinde then said the court is open to criticism.

"There were three pillars of democracy, the legislature, the executive and the judiciary. Now there is a fourth pillar, the media. We are open to criticism. The speech needs to be read in its entirety."

Desai said it may take time for the court to apply its minds to the entire speech and suggested the case be kept for hearing on another date. "Three aspects need to be considered; What is the message sent by the speech? Who it was addressed to? And the context in which it was made."

The bench then asked the prosecutor if they required Usmani for further investigation and if he would make a statement not to take coercive action till then.

Public Prosecutor JP Yagnik said Usmani would be required for further investigation. He refused to make a statement against taking coercive action but assured the court that the investigating officer was aware of guidelines for arrest as laid down in Arnesh Kumar vs State of Bihar on the rules of arrest and there would be no breach.

The Supreme Court had observed that there must be strict compliance of 41(1)(b) of the CrPC if a person is accused of an offence punishable with imprisonment, less than seven years, and she/he cannot be arrested by the police officer only on its satisfaction that the offence was committed.

"Police officer before arrest, in such cases, has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured," the SC noted.

Yagnik then submitted that Usmani could appear on a preferred date to which Desai said he will join in the investigation on March 18.

He assured the court that Usmani would make statements in the media after a question fell from the court.

The case was then adjourned for hearing to March 22, 2021