Delhi: “How did you tell the public that section 144 was in place in New Delhi?”
That’s the question a Delhi court judge asked a police witness on 18 September 2023, referring to the prohibitory order that bars more than five people from gathering in one place. “By loud hailer?” “Did you tell them yourself?” “Was there any other way?”
Inspector Upender Singh was the first witness to be summoned for an examination in the trial of the students of Jamia Millia Islamia accused of rioting and causing damage to public property on 13 December 2019, the day the first protest march from the university to Parliament against the contentious Citizenship Amendment Act, (CAA), 2019, ended in violence.
Singh’s cross-examination in a Saket court before additional sessions judge Arul Varma was deferred because not all the accused were present in court. Some had to be present across the town in a Karkardooma court before additional sessions judge Amitabh Rawat, where arguments for framing charges—the stage before the case goes to trial—was to begin in the Delhi riots conspiracy case earlier that day.
Two other police witnesses, head constable Ajay and constable Vipin, were also present in the Saket court but were discharged “due to paucity of time”. The next hearing was scheduled for more than a month later, on 21 October 2023.
Even as the trial began almost four years after a gathering of hundreds of students and residents outside Jamia descended into violence, the present pace of one hearing a month indicated how long the legal proceedings would continue taking.
Three weeks before the 18 September hearing, the three police witnesses summoned on 26 August 2023 were absent because they were on law and order duty for the G20 summit in Delhi.
To make some headway in the trial, Varma listed the next hearing for “pruning of witnesses” (80). He said the defence lawyers would admit documents, and the prosecution would drop witnesses whose documents would be admitted. The prosecution would also drop “witnesses of similar nature to the extent possible”.
Discharged, Charged
It was a very different scene in Varma’s court eight months ago, on 4 February 2023, when he discharged 11 students—five former Muslim students of Jamia, four Muslim students of Jamia at the time of the incident, one Hindu student and one Muslim student from Jawaharlal Nehru University—finding the police had made no “prima facie” case of the “students taking part in the mayhem”.
Amid a smattering of cheers and applause, they thanked him.
The judge, who saw the videos of the protest and police witness statements about the violence that left police personnel and students injured and resulted in property damage, said the “police were unable to apprehend the actual perpetrators behind the commission of the offence but surely managed to rope the persons herein as scapegoats”.
He said, “Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest,” and the police “should have abstained from filing such an ill-conceived chargesheets qua persons whose role was confined only to being part of the protest”.
Two months later, on 28 March 2023, Justice Swarana Kanta Sharma of the Delhi High Court set aside the lower court order, framed charges against the students, and expunged Varma’s remarks, saying they “should have been avoided” until it was clear whether the state was trying to suppress dissent or “trying to curb the menace of violence…and ensure the rule of law to those who were not part of this violent protest”.
On 3 February, a day before the district court discharged the students, Article 14 reported that a study of the three chargesheets in the case showed the Delhi police appeared to lack evidence against the students.
The police witness statements and the FIR appeared to differ regarding where section 144 was imposed—Jamia or near Parliament—an inconsistency the police explained away as a “typographical error”. The police witness statements, which sounded similar with a lot of identical phrasing, did not reveal any overt acts of violence by the accused.
There was no evidence of a pre-planned conspiracy to instigate violence at the protest. The only independent witnesses in the first three chargesheets were not at the protest. Statements of the students were recorded almost a year after the date of the incident.
As the case of the violence on 13 December 2019 goes to trial, Article 14 reviewed how the students came to be prosecuted for a case in which they were discharged. The police were told “not to blur lines between dissenters and rioters, and to desist from henceforth arraigning innocent protesters”.
Bystander Or Rioter
In the first chargesheet filed on 21 April 2020, four months after the FIR on 14 December 2019, only one person was arraigned: a motor mechanic whose photograph in a newspaper, as per the police case, showed him throwing a lit tyre toward the police. He was the only defendant against whom the district judge framed charges in February.
The eleven students, including Safoora Zargar, Asif Iqbal Tanha, and Sharjeel Imam, were added to the second supplementary chargesheet on 1 September 2021 (close to two years after the incident).
In his discharge order, Varma said that no overt act or participation in the commission of offences was attributed to them, there were no eyewitnesses who could substantiate the version of the police that the accused persons were in any way involved in the commission of offences. “Thus, the mere presence of the accused at the spot sans any overt acts, cannot implicate them.”
“The moot question,” the district judge said, was “whether the accused herein were even prima facie complicit in taking part in that mayhem?” “The answer is an unequivocal no.”
After looking at 11 video clips of the incident, the high court judge said she found there was a “prima facie” made out against the students because they were part of an assembly that was “not peaceful”, indicated by the bricks and stones pelted at the police force, the burnt tyres, damaged vehicles, burnt ropes and 25 barricades and riot equipment that were destroyed.
The judge said that five accused were pushing the barricades, “consciously part of the assembly which had turned violent”, and did not leave.
The district court judge has said none of the police witnesses gave statements about the accused breaking barricades, witnesses cited by the police only say they were present at the spot, and the photographs and videos on which the police show they were standing behind the barricades.
“Surely prosecutions cannot be launched on the basis of conjecture and surmises, and chargesheets definitely cannot be filed on the basis of probabilities,” Varma said.
Veracity Of Statements
The district court judge said the statements of the police were “starkly similar”, and all of them said they could recognise the rioters, and yet, “for a considerable period of time, no test identification parade was held and this fact has not been explained by the police.”
The judge said it was “strange” the police witnesses did not identify the accused “despite the filing of not one but three chargesheets”.
With the exception of Mohd Ilyas, who was identified by one constable Dharmendra when the first charge sheet was filed in April 2020, the police witnesses identified the accused only after filing the fourth chargesheet on 1 February 2023, more than three years after the date of the incident.
The high court judge said it was not open to this Court to question the prosecution, at the state of charge, regarding the veracity of statements of public or police witnesses, referring to Sajan Kumar vs CBI (2010), where the Supreme Court did not interfere in the framing of a charge against the petitioner who an eyewitness had named after 23 years.
On the police witness statements being similar, the high court judge said that since they were witnessing the same incident, their statements could not be held against them at this stage. The veracity of the statements could be tested after they were cross-examined in court during trial.
The judge said that the chargesheet and the police witness statements, at the stage of charge, had to be considered in a “limited manner”, and if they gave rise to a “strong suspicion”, charges could be framed.
The Other Violence
Two days after 13 December, another rally of anti-CAA protesters, students and residents made way for a violent confrontation. On 15 December, the Delhi police beat students in the streets and entered the university campus, where they hit them with canes in the library, partially blinding one student. Buses were burnt, and both sides sustained injuries.
The National Human Rights Commission, a statutory body, said “the entire police action was not handled very professionally” but largely blamed the Jamia students for the December violence. The People’s Union for Democratic Rights (PUDR), a human rights organisation, found the force used by the police to be “unauthorised”, “excessive”, “unjustified”, and “indiscriminate”.
Petitions seeking a special investigation team to probe the police brutality on 15 December and transferring the investigation into the Jamia violence cases to an independent agency are pending before the Delhi High Court. This year, senior advocate Indira Jaising told the court there was "an extreme form of violence" by police inside the Jamia campus.
“There was a lot of violence, and there is not a single FIR against the police,” Jaising told Article 14. “These cases have gone to court, they are pending before the bench of Justice (Siddharth) Mridul, but they are not making any progress.”
Jaising, who has petitioned for a special investigation team (SIT) to probe the violence on 15 December, said, “The defining moment of this government is to criminalise dissent on one hand and give impunity to the police for the unlawful acts they commit. And when you go to court, the courts are sitting on it like a sack of potatoes.”
On why no action was taken against the police personnel against whom there was video evidence, Jaising said, “The courts don’t see the urgency. They don’t see the urgency in life and liberty issues, to put it very bluntly.”
“You don’t have to ask the question who were these cops. They are identified and known. You don’t have to ask who were the victims they are identified and known,” she said. “The only conclusion you can come to is that this is a conscious undermining of the legal process.”
The Third Supplementary Chargesheet
Varma's court convened eight times between May 2022 and January 2023 to frame charges. Special public prosecutor Madhukar Pandey appeared for the first time on 26 November 2022 and sought more time to prepare. Questions about the delay revealed that neither the investigating officer nor the assistant commissioner of police or the deputy commissioner handed over the case file to the prosecutor. On 13 December 2022, three years after the violence, the police told the judge it was an “inadvertent” mistake.
The district judge was critical of police filing a third supplementary chargesheet as late as 1 February 2023 after the arguments on charge were almost over and a day before the conclusion of final arguments, saying no permission was sought in the investigating officer’s application dated 1 December 2022, calling it “executive overreach”, and there was no fresh evidence.
“…the witnesses merely aver that the accused were part of the protests, and some were speaking ‘very loudly’ and ‘were arguing with the police. No overt act has been attributed to them even in the present chargesheet,” Varma said in his order. “During the course of arguments, the question of non identification of accused by police witnesses was raised, and ostensibly, to fill this lacuna, the present chargesheet has been filed.”
“In short, the investigative agency has not adduced fresh evidence, rather than 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. This filing of a slew of chargesheets must cease, else this juggernaut reflects something beyond mere prosecution and would have the effect of trampling on the rights of accused persons.”
The defence lawyers told the high court the third supplementary chargesheet was to fix the lacunae in the police case they had pointed out during the arguments on charge.
The same apprehension about the police addressing lacunae has been expressed in the Delhi riots conspiracy case, where charges are to be framed against anti-CAA protesters, whom the police accused of instigating the communal violence in February 2020 under the guise of the anti-CAA movement at the time. In addition to the main chargesheet, five supplementary chargesheets have been filed, and the investigation continues more than three and half years after the riots claimed 53 lives, three-quarters of them Muslim.
Some defence lawyers have argued the police should complete the investigation before arguments on charge commence.
Differing from the district court judge, the district court judge said the police in the first chargesheet said they were delayed because of the onset of the Covid-19 pandemic and subsequent lockdown, each subsequent chargesheet said the investigation was ongoing, and the judge did not pass any order about completing the investigation before the arguments on charge.
During the pandemic, the accused were granted bail because of the delayed investigation, and the “same grace” had to be extended to the police as they maintained law and order “during the most difficult periods of this country in recent times” and performed many other duties related to Covid-19.
“…they were at all places in society trying to help everyone as they could.”
The Common Object
For the charge of unlawful assembly, the prosecution must show the members of the assembly shared a “common object”.
The district court judge said the prosecution could not elaborate on what “common object” was shared by the accused or between them and the crowd.
Citing the Supreme Court in State of Karnataka vs Chikkahottapa @ Varade Gowda & Ors (2001)—“when an offence is committed in prosecution of the common object, it would generally be an offence which members of the unlawful assembly knew was likely to be committed in prosecution of the common object.”
Noting that the “positive knowledge” test was missing in the chargesheet, the judge said, “Positive knowledge that their sloganeering would result in such a maelstrom is something that cannot be attributed to them sans cogent proof.”
The high court judge said a perusal of the material placed on record and police witness statements showed the “common object”, “created at the spot”, was “reaching curfew bound area and using force and violence against the police officers to achieve said object”.
The judge said, “The main aim of their initial protest against the government policy was lost in the violence and force against people and objects. Use of force and violence by the mob is sufficient, at prima facie stage of framing of charge, for constituting the offence of unlawful assembly and rioting”.
‘Yahan’ & ‘Wahan’
In October 2022, the Delhi police conceded that no written order was in place to impose section 144 in Jamia. In December, the prosecution said the prohibition order was in place for the New Delhi district, where the protesters were heading. But the first information report registered on 14 December at the Jamia Nagar police station said the police had imposed section 144 in the area outside Jamia where the protest was taking place.
The original FIR, included in the first chargesheet from April 2020, said the police announced and wrote in a banner that section 144 was imposed “here” (yahan), but in the chargesheets, the term used is “there” (vahan).
In 12 almost identical police witnesses recorded between 14 December 2019 and 21 December 2019, the witnesses said “yahan”. On 24 December 2019, Inspector Upender Singh, who was the complainant, said that due to a “typographical error”, the “wahan” became a “yahan” in the complaint.
A written order imposing section 144 in the New Delhi district, where Parliament is located, was not part of the first three chargesheets for FIR 296 but was filed with the fourth one.
The district court judge said, “A section 144 prohibitory order, that too in the area of New Delhi district, has been filed now, after the lapse of so many years. No explanation has been forthcoming as to why this notification was not filed earlier. In any case, this notification/prohibitory order would be redundant, as the area in question is south Delhi, not New Delhi.”
The judge said, “The fact of the matter is there was no prohibitory order under section 144 CrPC in force in the area where protests took place.”
The high court judge found the defence argument—the word ‘yahan’ has been changed to ‘wahan’ is an afterthought and points towards the falsity of the statement of witnesses—to be “bereft of any merit” and any further explanation about the “typographical error” would have to be made at trial.
The judge said all the police witness statements said the police told the protesters that they could protest peacefully at the spot in Jamia, which meant that section 144 was not in place, but they could not cross the barricades and go to Parliament, where the prohibitory order was in place.
The judge said the district court should have noted statements by six police witnesses who said the protesters were told they did not have permission to go to Parliament as section 144 was imposed in the New Delhi district.
The judge said that the police not placing the section 144 order for New Delhi in the first chargesheet was not a ground for discharge by the lower court.
Conspiracy Dropped
Three of the 11 accused were charged under only one section 143 (punishment for unlawful assembly), punishable by up to six months in jail or a fine.
The judge said to attract section 146, unlawful assembly, as per judicial precedent, it was not essential that every member of the unlawful assembly must commit an offence in furtherance of the common object, and mere knowledge of the likelihood of such an offence by members of the Assembly was sufficient.
Eight others were charged under 143, 147 (rioting), 148 (rioting armed with a deadly weapon), 149 (member of unlawful assembly guilty of offence committed in prosecution of common object), 186 (obstructing public servants in discharge of public functions), 353 (assault or criminal force to deter public servant) and 427 (commits mischief and thereby causes loss or damage to the amount of Rs 50,000).
The high court judge said, “In the present case, the participation of the respondents is in different ways…There are people who have used force and violence while participating in the protest. There are those who are consciously participating in the protest when the assembly has turned violent but did not use force. There are those who instigated by their speeches and actions and were present at the spot.”
The judge said, “Thus, each respondent has been charged according to the extent of his/her role as visible from the material on record.”
The sections invoked by the police in the chargesheet under which they were not charged: 308 (murder), 323 (punishment for causing voluntary hurt), 333 (voluntary cause grievous hurt to deter public servant), 341 (wrongfully restraining a person), 435 (mischief by fire or any explosive substance) and 120B/34 (criminal conspiracy).
It is worth nothing the charge of criminal conspiracy was dropped.
The district judge had said that “the chargesheet does not even contain a whisper or insinuating that the accused persons acted in tandem or that they coalesced at the spot after confabulating to do so. Meeting of minds for committing an illegal act or an act by illegal means is a sine qua non for criminal conspiracy.”
The high court judge said, “It is not the conspiracy or the prior meeting of the mind in the present case, but it is the culmination of the actions on the spot with specific intent by knowing the implications of such actions which attracts the elements of the offences alleged.”
The Independent Witnesses
Two independent witnesses were never at the place of the incident. A peon and a caretaker at the B R Ambedkar hostel inside the Jamia campus identified the students from the photos and videos they were shown, saying they recognised them because they used to keep coming to the canteen.
Noting how “strange” it was that police witnesses had not identified the accused until the filing of the third supplementary chargesheet on 1 February 2023, more than three after the date of incident, the district court judge said it was “equally strange” that the statements of the two independent witnesses were recorded on 2 December 2020, almost a year after the incident”, with no explanation forthcoming about the belated recording of statements. The judge said they had identified other persons but they were not accused “for reasons best known to the police”.
The high court judge said that at the state of charge, the adjudicating court had to give reason for disbelieving witnesses, even before the prosecution could examine them. They could be tested during cross-examination in the trial.
Why Them?
The defence lawyers have argued why these 11 accused were chosen for prosecution among the mob of thousands who gathered at the protest.
The high court judge said the witnesses had identified the accused at the spot, and the rest could not be identified.
The judge said, “Merely because some persons could not be identified and have not been charge-sheeted at present does not give a right of discharge to others who have been identified and connected with the offence in question.”
(Betwa Sharma is managing editor of Article 14.)
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