[BREAKING] 'Trial Court Cannot Be Lax Once There Is A Bail Order' : Delhi High Court On Issue Of Students Activists' Release In Riots Case

In the urgent applications filed before the High Court under Section 482 of the Code of Criminal Procedure, the activists contended that the Trial Court's action in deferring orders on their release despite the bail granted by the High Court was violative of their fundamental rights.

"Once an order of bail has been granted, release cannot be delayed citing administrative reasons. The court deferred the release citing heavy board", Senior Advocate Sidhharth Aggarwal, appearing for the applicants submitted.

"I can be released and they can go ahead with verification", he added. If there is an issue of verification, the trial court must temporarily release them pending verification, he urged.

The bench asked if the trial court is passing an order today, would not the present application become infructuous.

"At the highest, we can say that the trial court should dispose off the matter expeditiously. Has the trial court taken a view?", Justice Mridul asked.

"Unfortunately, by not passing an order, the trial court has taken a view", Aggarwal replied.

Justice Mridul asked whether it is an issue on which the High Court can take a call as the trial court is yet to pass its order.

"My difficulty today is that your lordships' order is not being implemented. The Rules say within a day it has to be done.The problem is, by not taking a view, the trial court has denied me of bail which was granted on Jun 15. At 6 PM, the trial court defers the order saying there is no time", Aggarwal urged.

Advocate Adit S Pujari, also appearing for the applicants, told the bench that the Delhi Police was "cleverly" delaying the release. "The Delhi Police have cleverly verified 1 surety each for every appellant and said there are mistakes with the 2nd", he said. Pujari said that this happened despite all the sureties being physically present in the court.

Pujari also told the bench that as per the orders passed by the High Court, verification process must be completed within 24 hours of grant of bail.

Special Public Prosecutor Amit Prasad told the bench that they are only following the directions in the bail order to verify the addresses of the accused and sureties before their release. He said that the police do not have "magical powers" to verify the permanent addresses of the accused in Jharkhand and Assam in a short time.

"The least that is expected is that trial court takes a decision with alacrity. The trial court cannot be lax about it once we pass a bail order", Justice Mridul observed.

When the SPP spoke about the verification of aadhaar numbers of sureties, Justice Bhambhani asked "Do you follow this procedure in all cases?".

The SPP said that there is a direction of the Supreme Court on verification of sureties. He also said that certain discrepancies were noted in the addresses furnished by the accused.

Justice Bhambhani observed that the verification cannot be a "two-week process".

"Maybe I'm missing something here. But what is this Assam, Jharkhand thing about. These are local sureties, you've had the accused in custody for a year. Chargesheet has been filed", Justice Bhambhani expressed surprise.

The SPP replied that there were discrepancies in the address furnished by Tanha. The police need to travel to Jharkhand to verify the addresses. As per rules, police can avail of only train services of Rajdhani express for such travel, the SPP added.

Ultimately, the bench said that it cannot monitor the verification process at this stage, as it is "within the domain of the trial court". Therefore, the High Court asked the parties to join the trial court at 12 noon today and posted the matter for further consideration at 3.30 PM today.

The applicants submitted that all the sureties were physically present in trial court despite their advance age/ professional obligations, on 15.06.2021 (from 12 pm-5.00 pm), and on16.06.2021 from 1pm to 5pm again. All sureties of the Applicant and their bonds and their FDs have been placed before the Additional Sessions Judge.

Yesterday, Additional Sessions Judge Ravinder Bedi of Karkardooma Courts had deferred the order on their release citing "heavy board" after the Delhi Police sought time for verification of the addresses of the accused and their sureties.

"..the continuing custody of the Applicant, despite the clear mandate of law, beyond 24 hours since the direction to verify sureties, is illegal, and the Applicant merits release forthwith", the plea states.

The action of the trial court is against the spirit of the High Court's bail order and violative of the fundamental right to personal liberty, the applications state.

The Delhi Police had stated that the outstation permanent addresses of student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha need to be verified for the purpose of their release pursuant to the Delhi High Court orders granting them bail yesterday in the Delhi Riots larger conspiracy case.

"The "outstation permanent address" verification of all accused persons is pending and could not be completed due to paucity of time", the Delhi Police said in the application filed before the Court.

While seeking time to file the verification report in the matter, Delhi Police has said that since Asif Iqbal Tanha, Natasha Narwal and Devanaga Kalita are permanent residents of Jharkhand, Rohtak and Assam respectively, time will be required by the investigating agency in filing the aforesaid verification report in the matter.

Apart from this, the Delhi Police also sought directions to the UIDAI to verify the Aadhar card details of the sureties.

In view of this, the Delhi Police has stated that for verification of the surety, mere phone number is not sufficient and thus, physical verification was required.

The Court had earlier sought a verification report on June 15 after the counsel for Devangana Kalita and Natasha Narwal moved the Court seeking immediate release after the High Court granted them bail.

The High Court had granted bail to Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha on June 15 after observing that offences under the Unlawful Activities Prevention Act (UAPA) are not made out prima facie against them in the Delhi riots conspiracy case.

The Delhi Police had filed chargesheet against them alleging that the protests organized by them against the Citizenship Amendment Act from December 2019 were part of a "larger conspiracy" behind the North East Delhi communal riots which took place in the last week of February 2020.

"We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy." observed the High Court while granting bail to Natasha Narwal.

In the three separate orders delivered allowing the bail applications of Tanha, Narwal and Kalita, the High Court hasld undertaken a factual examination of the allegations to ascertain if prima facie case is made out against them for the purposes of Section 43D(5) of UAPA.

A High Court bench comprising Justices Siddharth Mridul and Anup Jairam Bhambhani, after a preliminary analysis of the chargesheet, observed that the allegations do not prima facie constitute the alleged UAPA offences relating to terrorist activities(Sections 15,17 and 18).

Therefore, the division bench said that the rigour of Section 43D(5) of the UAPA against the grant of bail was not attracted against the accused, and hence they were entitled to grant of bail under the ordinary principles under the Code of Criminal Procedure.

"Since we are of the view that no offence under sections 15, 17 or 18 UAPA is made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under section 43D(5) UAPA do not apply; and the court may therefore fall back upon the usual and ordinary considerations for bail under the Cr.P.C"

These three student leaders have spent over a period of one year in Tihar jail, even amid the two deadly waves of the COVID pandemic. The benefit of interim bail on account of the pandemic was not available to them as they were accused under the UAPA. After Natasha Narwal lost her father Mahavir Narwal to COVID last month, the High Court had granted her interim bail for three weeks to perform the funeral rites.

In a related development, the Delhi Police on Wednesday approached the Supreme Court challenging the aforesaid bail orders.