New Delhi, March 23 (IANS) The Delhi High Court on Thursday reserved its judgement on the police's revision plea against a trial court's order discharging 11 accused, including Sharjeel Imam, Safoora Zargar, and Asif Iqbal Tanha, in the 2019 Jamia violence case.
Violence erupted at Jamia Millia Islamia in December 2019 after a clash between the police and anti-Citizenship Amendment Act protesters.
Additional Solicitor General Sanjay Jain appeared for Delhi Police while different advocates represented the respondents namely Imam, Tanha, Zargar, Abuzar, Umair Ahmed, Mohd Shoaib, Mahmood Anwar, Mohd Qasim, Mohd Bilal Nadeem, Shahzar Raza Khan, and Chanda Yadav.
All 11 accused persons were discharged by the trial court on February 4, but it had, however, framed charges of unlawful assembly and rioting against Mohd Ilyas.
"Photographs of Mohd Ilyas have been clearly shown in a newspaper, hurling a burning tyre, an overt act has been ascribed to him, and he has been duly identified by police witnesses," Additional Sessions Judge, Saket, Arul Verma had noted.
Before the bench of Justice Swarana Kanta Sharma on Thursday, Jain contended that the trial court (Saket court), "overstepped its jurisdiction" in passing "disparaging and gravely prejudicial observations" against the probe and the investigative agency and said that the same ought to be expunged from the record.
ASJ Verma had pulled up police while discharging the accused persons, saying that police were unable to apprehend the actual perpetrators behind the commission of the offence, but surely managed to rope in these 11 accused as "scapegoats".
Jain also submitted that the trial court, at the stage of framing of charges, cannot conduct a mini-trial by determining the credibility of the evidence.
At this, the bench said: "The trial court judge has basically said you couldn't bring anything on record for the court to believe that these persons were part of a crowd who committed an offence. They also raised the question that when there were so many people, why did you only pick up a few?"
To this, Jain said that the 10 video clips available with the prosecution "reveal that six of the discharged accused persons are seen indulging in acts as mentioned in the charge sheet" and that those videos were also submitted to the trial court.
He argued that the video clips were filed along with the second supplementary charge sheet which was part of the record before the trial court.
Appearing for respondents Anwar, Raza Khan, Qasim and Umair Ahmed, advocate M.R. Shamshad submitted that the accused were merely bystanders and that the trial court had passed the right order of discharging them. He added that as his clients were the students of the varsity at that time when the clashes erupted, their Call Data Record (CDR) showing their location at the spot was of no relevance.
"I am not shying away from additional charge sheets. It's a matter of investigation... I can't say it is illegal because there is no bar. But ultimately, the position of the accused has to be seen."
He added that they are ultimately students who were protesting.
"For this you'll go to this extent?? That's my case," he contended.
On behalf of student activist and JNU alum Imam, advocate Talib Mustafa submitted that there is no video clip or any single statement of witness against Imam in any of the charge sheets.
"What remains is a disclosure statement against me which cannot be sufficient for framing of charges."
Senior advocate Rebecca John, appearing for Zargar, questioned the manner of her identification by police. She submitted that the person who was identified as Zargar from a video clip had a "face cover", adding that no reason was given by the prosecution for concluding that it was her.
"The person they claim is me which I contest is in clip 9. At the very outset, they have to cross the threshold as far as identification is concerned. Because the person seen in clip 9 has a face cover, assuming it's a she. How can they assume it's me? They are not giving me any feedback as to why they have come to that conclusion," John said.
"Till the time my identity isn't confirmed, my role has to be disconnected."
Stating that there is an inconsistency in the FIR and subsequent charge sheets, John further submitted that Zargar was neither named in the first charge sheet, nor any role was attributed to her.
"For the first time, I am named as an accused in September 2021, for an incident that happened in 2019. They have not stated on what basis they were able to identify a person whose face was covered with cloth. It's my argument that somewhere you've to say how did you identify this person. You can't make out who that person is," she said.
"It doesn't behove an investigating agency like Delhi police to place inadmissible evidence before court."
Handing over certain photographs to the court, she said: "This requires some magic to discern, assuming it's a she. It could be anybody. Therefore, the first principle of criminal law is that when your case is that I was present at spot, you've to prove my presence. You are identifying accused on basis of photos from persons who weren't there on spot. We should know what is that process which gave him the supernatural powers which made him go behind the veil and say this is Safoora Zargar and not someone else."
Concluding her submissions, John said that it is not a case of "grave suspicion" but "where two views are possible".
The High Court had earlier said that there will be no influence on the further investigation or trial of the remaining accused due to the trial court's order. "Since further investigation will be carried out, observations made against the investigating agency will not affect either further investigation or trial of any accused," Justice Sharma had said while issuing notice on the Police's revision petition.
ASJ Verma while discharging the 11 accused had said that the protesters were surely there in large numbers and it cannot be denied that some anti-social elements within the crowd created an environment of disruption.However, the moot question remains as to whether the accused persons herein were even prima facie complicit in taking part in that mayhem, he asked.