Candlelight Vigil Against Delhi Riots : Bombay High Court Questions Invocation of Sections Attracting Imprisonment Against Protesters

The 16 petitioners were accused of defying the Deputy Commissioner of Police's (DCP) prohibitory order of February 18 against assembling when they gathered for "a candlelight vigil" at Dadar on February 26, 2021.

A division bench of  Justices SS Shinde and NJ Jamadar heard the petition filed under Article 226, 227 and Section 482 of the CrPC by students, senior citizens and social activists - seeking to quash the charge sheet and all proceedings against them.

The bench found merit in the petitioner's submissions.

Advocate Anandani Fernandes submitted that while the DCP issued prohibitory orders under a section that only attracts a fine (Rs 2,500), the petitioners have been charge-sheeted with a different graver sections that attracts minimum imprisonment of 4 months up to a year.

"….the police rounded them up and an FIR was registered…The difficulty is that the DCP's order has been issued under subsection 37(3) and 135 of the Act that is punishable only with fine."

"When the charge sheet was filed, instead of prosecuting them under 37(3) and 135, they have wrongly applied section 37(1) along with section 135," Fernandes said.

Following her submissions, the court sought a response from the public prosecutor, who sought more time. The prosecutor had sought time to take instructions even when the plea had come up last year.

"She is right in her submission, how can you invoke something not in the order?...(interrupted by the prosecutor) We have to read under which provisions the order is issued and which sections are invoked in the charge sheet," Justice Shinde said while granting a last opportunity to the prosecution.

The petition was then adjoured to October 11, 2021.

Sections 37 and 135 of Maharastra Police Act 1951 reads thus-

37. Power to prohibit certain for prevention of disorder –

37 (1) (f) delivery of harangues, the use of gestures or mimetic representations, and the preparation, exhibition or dissemination of pictures, symbols, p1acards or any other object or thing which may in the opinion of such authority offend against the decency of morality or undermine the security of or tend to overthrow the State.

37 (3) The authority empowered under sub-section (1) may also by order in writing prohibit any assembly or procession whenever and for so long as it considers such prohibition to be necessary for the preservation of the public order:

135( i) if the order disobeyed or of which the disobedience was abetted was made under sub-section (1) of Sec. 37… with imprisonment for a term which may extend to one year but shall not except for reasons to be recorded in writing, be less than four months and shall also be liable to fine, and

(iii) if the said order was made under sub-section (3) of Sec. 37, with fine which may extend to two thoughsand five hundred rupees.

Other Grounds In The Petition

The petitioners claimed they have no criminal antecedents. They said the meeting's nature, purpose, and intent made it clear there would be no breach of public order.

The charge sheet comprised just one witness, an assistant police inspector who claims to have made a public announcement about the prohibitory order, nothing to corroborate his statement, the plea alleges.

The petitioners allege gender discrimination as the police officer states that women were allowed to go, but the men were rounded up and booked.

Case Title: [Vikram Gurbir Singh vs State of Maharashtra] (through Sr PI Shivaji Park Police Station)

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