Delhi court discharging Jamia students brings relief, spurs hope 

Police personnel outside the Jamia Millia Islamia University as students stage a protest against the passing of Citizenship Amendment Bill, in New Delhi, Friday, Dec. 13, 2019. | Picture: PTI

Students of the Jamia Milia Islamia expressed relief after being discharged by a Delhi court on Saturday in a case connected to violence during protests against the Citizenship Amendment Act (CAA) in December 2019.

Arbab Ali |

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NEW DELHI — Mohd Shoaib, a student at Jamia Millia Islamia university in New Delhi, was one among 10 other students charged with inciting violence in Delhi on December 13, 2019, the day demonstrators gathered for the first march against the contentious Citizenship Amendment Act (CAA) from Jamia Millia Islamia to the Parliament. 

The students were charged under 16 sections of two laws, including rioting, unlawful assembly, assaulting public servants, “mischief by fire”, “attempt to commit culpable homicide”, and “criminal conspiracy”.

On February 4, more than two years after the second supplementary chargesheet in the incident was filed which included Shoaib’s name, a Delhi Court discharged him and 10 others in the case.

The discharged students include Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Mohd Abuzar, Umair Ahmad, Bilal Nadeem, Sharjeel Imam, Asif Iqbal Tanha, Chanda Yadav, and Safoora Zargar. Imam, however, remains imprisoned in connection with additional FIRs filed against him in connection with the 2020 North-East Delhi riots. 

Discharging Shoaib and 10 others, the Court observed that the police were unable to apprehend “actual perpetrators” and “surely managed to rope them (accused) as scapegoats” in the matter. It stated that putting such people through the ordeal of a protracted trial does not bode well for our nation’s criminal justice system.

“Through this case, the police wanted to say that don’t go against us,” Shoaib told 

Shoaib said even though Jamia students faced violence on that day, the police in turn filed a case against students only. 

Shoaib was summoned twice by the Delhi Police in 2021 and appeared in at least 8 court proceedings since May 2022. He said he was fortunate to have a lawyer take up his case pro bono, but he still had the financial and mental burden of attending investigations and court proceedings. He claimed that whenever he or the other accused students went to university officials to negotiate during protests, they were reminded of their criminal history.

The worst part, according to Shoaib, is that the university administration never offered them any legal assistance. “They have good lawyers, but they didn’t help,” he said.

Shoaib said the court’s decision has given him hope.  

Another student discharged in the case Mahmood Anwar told that he was not hopeful for a favourable order. “It far surpassed my expectations,” he said. Anwar is a post-doctoral student at Jamia Millia Islamia.

According to Mahmood, the investigating agency was aware that there was no case.

Anwar claimed that a case like this, which had no merits, should have been resolved in six months or a year. “But this dragged on for nearly three years,” he explained.

“The public prosecutor just to harass us kept on delaying the case. They knew the case would fall apart in the court.”

Anwar stated that his family was also aware of the case against him. “Not only was I mentally burdened, but so was my family.” 

He said the frequent visits to court were taxing on him. “I used to leave my classes and work to attend court proceedings for months with no progress.”

‘Mere presence at protest site insufficient to implicate protesters’
The judge stated that the prosecution has been launched in a “perfunctory and cavalier fashion” against them, observing that mere presence at the protest site without overt acts cannot lead to implication as accused.

It went on to say that there were no eyewitnesses who could corroborate the police’s claim that the accused were in any way involved in the commission of the offences. 

It stated that up to the filing of the third supplemental chargesheet, no test identification parade had been conducted during the inquiry and that the photographs and videos only showed the accused individuals standing behind the barricades.

“There is nothing on record to even prima face suggest that the accused herein were part of some riotous mob. None of the accused herein were brandishing any weapon or throwing any stones etc. Thus, prima facie there is no evidence qua the accused herein that they resisted the execution of any law,” said the court.

No prima facie proof of conspiracy
The court stated that the prosecution did not present any WhatsApp chats, SMSs, or even proof of the accused persons interacting with each other, which could give credibility to the State’s assertions that there was a conspiracy or some agreement between the accused persons.

The court upheld that restricting a citizen’s right to peacefully protest should not have been done without due process and that dissent is nothing an “extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19” subject to the restrictions contained therein. It is a right which we are sworn to uphold, the court remarked.

Filing of multiple charge sheets
On April 21, 2020, the chargesheet was filed against Mohd Ilyas. In addition to the Complaint under Section 195 CrPC, DCP, South-East filed a supplementary chargesheet. Following that, on January 12, 2021, more than two years after the incident, a second supplementary chargesheet was filed before the Court, adding Shoaib and 10 other students as accused.

In total, the prosecution filed four chargesheets in the case.

The investigating authorities sought to establish in the third supplementary chargesheet that the witnesses had identified the accused persons herein based on photographs.

A review of the third supplementary chargesheet, according to the court, reveals that the same photographs that were already part of the record have been filed. The court also noted that the witnesses had completed photo identification three years after the incident. “It is not a case in which the whereabouts of the witnesses were unknown,” the court stated.

The court stated that the prosecution’s case is questionable because the photo identification of the accused was done extremely late, after the accused filed written arguments.

The judge said, even in the third chargesheet, witnesses simply state that the accused were present at the protests and that some of them were “speaking loudly” and “arguing with the police.” They have not been charged with any overt acts, according to the most recent chargesheet, the court noted.

The court stated that “the investigative agency has not adduced fresh evidence, rather has sought to present the same old facts in the garb of further investigation’ by filing another supplementary chargesheet. In the present case, it has been most unusual of the police to file one chargesheet and not one but three supplementary chargesheets, with really nothing new to offer.”

No section 144 at the protest site
The court stated that the police filed a Section 144 CrPC prohibitory order, that too in the New Delhi District, after many years. According to the court, no explanation has been provided as to why this notification was not filed sooner.

The court ruled that because the area in question was South Delhi rather than New Delhi, the prohibitory order was redundant.

Although some police witnesses stated in their statements that Section 144 CrPC was in effect at the time, the court stated that no such notification was placed on record until recently. DCP Sh RP Meena testified before the Court in October 2022 that there was no written prohibition 144 CrPC in effect at the time of the offence, the court said.

Arbab Ali is a fellow at the SEEDS-TCN mentorship program.