Delhi High Court: The present appeal was preferred by appellant under Section 21(4) of the National Investigating Agency Act, 2008 (‘NIA’) against the impugned order dated 6-10-2022, whereby he was denied bail. The FIR was initially registered under Sections 120-B, 147, 148, and 149 of the Penal Code, 1860 (‘IPC’), however, subsequently, Sections 124-A, 153-A, 109, 114, 212, 353, 395, 427, 307, 302, 186, 452, and 34 of IPC and Sections 3 and 4 of Prevention of Damage to Public Property Act, 1984 (‘PDPP Act’) and Sections 13, 16, 17, and 18 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) were also added.
The Division Bench of Suresh Kumar Kait* and Manoj Jain, JJ., opined that in the present case, there was enough material on record which clearly indicated that appellant was a co-conspirator and had committed the offence for which he was charge-sheeted. Thus, the Court held that in view of bar provided under Section 43-D(5) of UAPA, there was no merit in the present appeal and the same was accordingly dismissed.
Background
Appellant stated that the FIR was registered on 25-2-2020 at the instance of Constable Sunil, posted at Police Station Dayalpuri, Delhi, who on 24-2-2020 along with other members of the police team was deployed at Chand Bagh, Delhi, which was attacked by mob during the riots. In the alleged incident, Head Constable Ratan Lal lost his life and DCP, Shahdara and ACP, Gokulpuri sustained grievous injuries.
Appellant submitted that his name was mentioned by Head Constable Sunil and Constable Gyan in their supplementary statements recorded on 27-2-2020 and thereafter, on 11-3-2020, appellant was arrested in FIR No. 60 of 2020 registered at Police Station Dayalpur. However, appellant was also arrested on 25-6-2020 in FIR No. 59 of 2020, registered at Police Station Crime Branch, Delhi from Mandoli Jail, for larger conspiracy under Sections 147, 148, 149, and 120-B of IPC. Appellant moved his first regular bail application on 13-11-2021 before the Special Court, Delhi and on 14-3-2022, co-accused in the present FIR was granted bail by the Special Court. However, the Special Court, vide impugned order dated 6-10-2022, dismissed appellant’s bail application, which has been assailed in the present appeal.
On 1-9-2020, the Head Constable, in his statement recorded under Section 161 of Criminal Procedure Code, 1973 (‘CrPC’) , stated that he was deployed as a Beat Constable at Chand Bagh area at Dayalpur Police Station, where protests against Citizenship (Amendment) Act, 2019 (‘CAA’) were going on and appellant, along with others, had put up tent and banner and gave provocative hate speeches to the crowd that used to gather in the protest. Appellant, along with other associates, used to instigate people for joining protest against the Central Government and in the name of religion and these people used to manage the stage and introduced the speaker, distribute langar, and provoked Muslim community against the government. The organizers of the protest D.S Bindra, Salman Siddiqui, Saleem Khan, and appellant used to get money from Tahir Hussain to run the protest. It was further stated that appellant was one of the protestors, who had provoked people to indulge in violence and consequently, there was pelting of stones and attack on the police personnel with sticks, rods, etc and the government and non-government property was extensively damaged.
The Trial Court dismissed the bail application of appellant holding that based on the charge-sheet and other documents, a prima-facie case against appellant was made out and in view of embargo of Section 43-D(5) of UAPA and Section 437 of CrPC, appellant was not entitled to bail.
Analysis, Law, and Decision
The Court stated that “the preparators and conspirators of such riots had learnt a lesson from the riots which had earlier taken place in December 2019 which were having similar characteristics and modus operandi, albeit on a lower scale. The objective of the conspirators was to escalate protests to chakka jam and once crowd in large number was mobilized, lead and incite them against police and others. In order to give a secular look, secular names/Hindu names were given to protest sites to give secular color. The conspiracy involved from moving from protest site to designated locations and to block the main road and highways and thereby, create communal violence, attacking police and paramilitary forces, damage public and private property by using petrol bombs, firearms, deadly weapons, acid bombs, stones, chilli powder, etc”.
The Court opined that even though appellant might not be a part of the WhatsApp group but was quite obvious from the statement of witnesses that he had attended the meetings and took active part in relation to hatching conspiracy of committing riots. The Court opined that at this initial stage of the case when the court was yet to ascertain charges and then to embark on trial, the statements of witnesses examined by the prosecution during the investigation had to be taken at their face value.
The Court observed that Constable Sunil in the first supplementary charge-sheet and the other prosecution witnesses in their statements, had named appellant, who had allegedly hatched a conspiracy of destroying the CCTV cameras installed in the Chand Bagh area, and he had not only delivered provocative speeches, aiming at destroying the religious harmony which were against the unity and sovereignty of the country. Also, he was instrumental in providing financial assistance to facilitate the commission of riots. The Court opined that the accusation made against appellant made out a “prima facie true” case against him and consequently, embargo created under Section 43-D(5) of UAPA, automatically gets attracted.
The Court relied on Bimal Gurung v. Union of India, (2018) 15 SCC 480, wherein the Supreme Court observed that “Articles 19(1)(a) and 19(1)(b) give constitutional right to all citizens freedom of speech and expression which includes carrying out public demonstration also but public demonstration when becomes violent and damages the public and private properties and harm lives of people it goes beyond fundamental rights guaranteed under Article 19(1) and becomes an offence punishable under law. Thus, though the citizen of this country has a right to protest but it has to be in a peaceful manner and without resorting to violence”. The Court noted that in the meetings dated 20-2-2020 and 21-2-2020 at Chand Bagh and again on 22-2-2020 and 23-2-2020, which were attended by appellant along with other accused, the aspects related to riot-like violence and burning of Delhi, were openly discussed which was not acceptable in any democratic Nation. There were also talks of finances, arranging arms, procuring of petrol bombs for killing of people and arsoning of property and destruction of CCTV installed in the area.
The Court opined that in the present case, there was enough material on record which clearly indicated that appellant was a co-conspirator and had committed the offence for which he was charge-sheeted. Thus, the Court held that in view of bar provided under Section 43-D(5) of UAPA, there was no merit in the present appeal and the same was accordingly dismissed. The Court made it clear that any observation made in the present case should not be construed as an expression on the merits of the case and the Trial Court, while deciding the charges, should not be influenced, either way, by any observation made in the present case.
[Salim Malik v. State (NCT of Delhi), 2024 SCC OnLine Del 2824, decided on 22-4-2024]
*Judgment authored by: Justice Suresh Kumar Kait
Advocates who appeared in this case :
For the Appellant: Salman Khurshid, Senior Advocate; Bilal A. Khan, Anshu Kapoor, Sidra Khan, Advocates
For the Respondent: Amit Prasad, Special Public Prosecutor; Ayodhya Prasad, Anuradha Mishra, Ninaz Baldawala, Advocates; Anil Kumar, from Special Cell
Buy Penal Code, 1860 HERE
Buy Code of Criminal Procedure, 1973 HERE
