Dissent & Right To Protest Fundamental For Democratic Polity; Sole Act Of Protesting Must Not Be Employed As A Weapon To Justify Incarceration Of Protestors: Delhi High Court

Importantly, while granting them bail, the Court opined thus:

"It is the Constitutional duty of the Court to ensure that there is no arbitrary deprivation of personal liberty in the face of excess of State power."

The Bench of Justice Subramonium Prasad passed the orders today after reserving them last month and those granted bails include accused namely Tabassum & Shadab Ahmad (both dealt with in this article), Furkan, Suvaleen and. Mohd. Arif,

Read more about the case (including Mohd. Arif's matter) here: [Delhi Riots] Vague Evidence & General Allegations Not Sufficient Invoke 149 R/W 302 IPC: High Court Grants Bail To Five Accused In Head Constable Ratan Lal Murder Case

While the order was reserved in 11 bail applications filed by different accused persons in the FIR, the Court passed orders in 5 of them. In the present article, we would be dealing with the orders passed by the court in Shadab Ahmad & Tabassum case.

The case in brief

An FIR was registered on the statement of a Constable stating that on 24th February last year, he was on the law-and-order arrangement duty with other staff members at Chand Bagh area when at around 1 PM, the protesters (including the bail applicants) carrying danda, lathies, baseball bats, iron rods and stones started gathering at the main Wazirabad road and did not pay heed to the directions of senior officers thereby became violent.

It was further stated that after repeated warnings to the protestors, mild force and gas shells were used to disperse the crowd, however, according to the Constable, violent protesters started beating people as well as police personnel, due to which he himself sustained injury on his right elbow and hand.

It was also alleged that the protestors attacked DCP Shahdara, ACP Gokulpuri, and Head Constable Rattan Lal due to which they fell on the road and sustained grievous injuries.

Thereafter, all the injured persons were taken to hospital, where it was found that HC Rattan Lal had already died due to injuries sustained and DCP Shahdara was unconscious and had sustained head injuries.

Case against Tabassum

It was alleged that Tabassum would share a stage with other protestors and instigate them to commit violence and that she was in constant touch with other main conspirators/co-accused, as well as the accused who have been arrested in the larger conspiracy case.

Case against Shadab Ahmed

It was alleged that Shadab Ahmed is one of the main conspirators and has played a vital role in instigating the protestors at Chand Bagh.

The chargesheet alleged that he was entrusted with the job of maintaining the tent and the stage at the protest site, and that he would, along with the other accused, deliver hate speeches and instigate the public to be violent.

The primary question before the Court

Whether when an offence of murder is committed by an unlawful assembly, then whether each person in the unlawful assembly should be denied the benefit of bail, regardless of his role in the unlawful assembly or the object of the unlawful assembly.

Court's observations

At the outset, the Court observed that applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations.

"When there is a crowd involved, at the juncture of grant or denial of bail, the Court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object," added the Court.

Further, noting that Tabassum had been in Jail 10 months and Shadab has been in jail for 16 months, the Court observed thus:

"Bail jurisprudence attempts to bridge the gap between the personal liberty of an accused and ensuring social security remains intact. It is the intricate balance between the securing the personal liberty of an individual and ensuring that this liberty does not lead to an eventual disturbance of public order. It is egregious and against the principles enshrined in our Constitution to allow an accused to remain languishing behind bars during the pendency of the trial."

Therefore, the Court opined that while deciding an application for grant of bail, it must traverse this intricate path very carefully and thus take multiple factors into consideration before arriving at a reasoned order whereby it grants or rejects bail.

Further, regarding the case of Tabassum and Shadab Ahmad, the Court noted that they had not been caught on any video footage in the vicinity of the protest site and

The Court also discarded the contention of the prosecution in Tabassum's case that a few women wearing burqas have been caught assaulting police officials in the Vishal Chaudhary video does not have any weight at this juncture because the petitioner cannot be identified in the video.

Additionally, the Court opined that merely being one of the organisers of the protest as well as being in touch with others who participated in the protest is also not sufficient enough to justify the contention that the Petitioner was involved in the pre-planning of the alleged incident.

Against this backdrop, the Court remarked thus:

"It is to be noted that the right to protest and express dissent is a right which occupies a fundamental stature in a democratic polity, and therefore, the sole act of protesting should not be employed as a weapon to justify the incarceration of those who are exercising this right."

With these observations, the Court granted them bail on a personal bond in the sum of ₹35,000/- each with one surety of the like amount to the satisfaction of the Trial Court/Duty Magistrate.

[Delhi Riots] Vague Evidence & General Allegations Not Sufficient Invoke 149 R/W 302 IPC: High Court Grants Bail To Five Accused In Head Constable Ratan Lal Murder Case

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