Right to protest and express dissent occupies a fundamental stature in a democratic polity and therefore sole act of protesting should not be employed as a weapon to justify the incarceration of those exercising it, said the Delhi High Court on Friday while granting bail to five accused including a woman in a north-east Delhi riots case.
The high court said it is the constitutional duty of the court to ensure that there is no arbitrary deprivation of personal liberty in the face of excess state power.
Justice Subramonium Prasad, in five separate verdicts, granted bail to accused Mohd Arif, Shadab Ahmad, Furkan, Suvaleen and Tabassum, who are facing prosecution for the murder of Delhi Police head constable Ratan Lal during the north-east Delhi riots in 2020.
It is to be noted that the right to protest and express dissent is a right which occupies a fundamental stature in a democratic polity, and therefore, the sole act of protesting should not be employed as a weapon to justify the incarceration of those who are exercising this right, the judge observed.
The court said while the definitiveness and veracity of the statements of public witnesses and police officials is not to be delved into at this juncture and is a matter of trial, this court is of the opinion that the same is not sufficient to justify the continued incarceration of the petitioners.
The high court said the issue which arose for consideration was whether when an offence of murder was committed by an unlawful assembly, then should each person in the unlawful assembly be denied the benefit of bail, regardless of their role in the unlawful assembly or the object of the unlawful assembly.
It said, when there is a crowd involved, at the juncture of grant or denial of bail, the court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object.
“There cannot be an umbrella assumption of guilt on behalf of every accused by the court, and every decision must be taken based on a careful consideration of the facts and circumstances in the matter therein. This principle, therefore, gains utmost importance when the court considers the question of grant or denial of bail.”
The high court said bail is the rule and jail is the exception and the Supreme Court has time and again held that courts need to be alive to both ends of the spectrum, that is, the duty of the courts to ensure proper enforcement of criminal law, and that the law does not become a tool for targeted harassment.
The police had argued that on February 24, 2020, at the behest of the organisers of the protest, a crowd carrying various weapons such as dandas’, lathis’, baseball bats, iron rods, and stones convened at the main Wazirabad Road and refused to pay heed to the orders of the senior officers and police force.
While opposing the bail pleas, Additional Solicitor General S V Raju had submitted that the crowd soon got out of control and started pelting stones at the police officers and more than 50 police personnel suffered injuries and Ratan Lal was shot dead.
He had added that the protestors turned violent, burnt private and public vehicles, as well as other properties in the vicinity, including a petrol pump and a car showroom. The high court said bail jurisprudence attempts to bridge the gap between personal liberty of an accused and ensuring that social security remains intact.
“It is egregious and against the principles enshrined in our Constitution to allow an accused to remain languishing behind bars during the pendency of the trial. Therefore, the court, while deciding an application for grant of bail, must traverse this intricate path very carefully and thus take multiple factors into consideration before arriving at a reasoned order whereby it grants or rejects bail,” the judge said.
Regarding Ahmad and Tabassum, the court said merely being one of the organisers of the protest and being in touch with other participants was also not sufficient to justify the contention that the two petitioners were involved in the pre-planning of the alleged incident.
The court said fourth charge sheet has already been filed and trial in the matter is likely to take a long time and it was of the opinion that it would not be prudent to keep these accused behind bars for an undefined period of time at this stage. It said the accused have roots in society, and, therefore, there was no danger of them absconding and fleeing and directed them to furnish a personal bond of Rs 35,000 each and a surety of the like amount.
The accused were directed not to leave the national capital without permission of the court and that they shall not tamper with the evidence or influence witnesses. Regarding the role of woman accused, Tabassum, the high court said the record revealed that she has not been caught on any video footage in the vicinity of the protest site, and the contention that a few women wearing burqas have been caught assaulting police officials in a video does not have any weight at this juncture as she cannot be identified in the clip.
While granting bail to 18-year-old Suvaleen, the court said it would not be prudent to keep him behind bars for an undefined period of time at this stage and his continued incarceration with hardened criminals will only be detrimental. Furkan, Arif, Ahmad, Suvleen and Tabassum were arrested on April 1, March 11, April 6, May 17 and October 3 last year, respectively.
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