Delhi High Court
Devangana Kalita vs State Of Nct Delhi on 15 June, 2021
$~S~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15 June 2021
+ CRL.A. 90/2021
DEVANGANA KALITA ..... Appellant
Through: Mr. Adit S. Pujari, Ms. Tusharika
M a t t o o & M r. K u n a l N e g i ,
Advocates.
versus
STATE OF DELHI NCT ..... Respondent
Through: Mr. Amit Mahajan, Mr. Amit Prasad
and Mr. Rajat Nair, SPPs for the State
alongwith Mr. Dhruv Pande & Mr.
Shantanu Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
Introduction
The appellant, Devangana Kalita, is a student pursuing the M.Phil.-
Ph.d. Programme in the Department of Women's Studies at the Jawaharlal
Nehru University, New Delhi, having completed her Bachelor of Arts
(Honours) degree in English from Miranda House College, Delhi University
and Master of Arts degree in Gender & Development at the Institute of
Development Studies, University of Sussex, United Kingdom.
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2. The appellant has preferred the present appeal under section 21(4) of
the National Investigation Agency Act 2008 ('NIA Act', for short)
impugning order dated 28.01.2021 made by the learned Special Court
rejecting the appellant's bail application in case FIR No. 59/2020
dated 06.03.2020 ('subject FIR', for short) registered initially under
sections 147 / 148 / 149 / 120-B of the Indian Penal Code, 1860
('IPC', for short) at P.S.: Crime Branch, New Delhi, to which offences
under sections 109 / 114 / 124A / 153A / 186 / 201 / 212 / 295 / 302 /
307 / 341 /353 / 395 / 419 / 420 / 427 / 435 / 436 / 452 / 454 / 468 /
471 / 34 IPC, sections 3 / 4 of the Prevention of Damage to Public
Property Act, 1984 ('PDPP Act', for short), sections 25 / 26 of Arms
Act, 1959 and sections 13 / 16 / 17 / 18 of the Unlawful Activities
(Prevention) Act, 1967 ('UAPA', for short) were subsequently added.
3. The appellant was arrested and is stated to be in custody in the subject
FIR since 29.05.2020.
Backdrop & essence of allegations against Appellant
4. The appellant is one of the accused in 04 FIRs, bearing FIR No.
250/2019 dated 21.12.2019 registered at P.S.: Daryaganj; FIR No.
48/2020 dated 24.02.2020 registered at P.S.: Jafrabad; FIR No.
50/2020 dated 26.02.2021 registered at P.S.: Jafrabad; and FIR No.
59/2020 dated 06.03.2020 registered at P.S.: Crime Branch, the last
one being the subject FIR in the present appeal. It would be relevant
to mention at this point, that the appellant has already been admitted
to regular bail in FIR Nos. 250/2019, 48/2020 and 50/2020 vidé
orders dated 02.06.2020, 24.05.2020 and 01.09.2020 made by the
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concerned courts; and is presently in judicial custody only in FIR No.
59/2020, that is in the subject FIR.
5. The essential case alleged by the State against the appellant is that, as
part of a women's rights group called Pinjra Tod (which may loosely
be translated as 'break-free from the cage', namely from societal
shackles), and other activistic groups called the Delhi Protests
Support Group ('DPSG', for short), the Jamia Coordination
Committee ('JCC', for short), Warriors, and 'Auraton ka Inquilab',
the appellant participated in what is described by the State as a 'larger
conspiracy', to commit certain offences that are subject matter of the
subject FIR, which led to violence and rioting in the North-East Delhi
between 22.02.2020 and 26.02.2020. These allegations arise from
protests, in which the appellant is alleged to have participated, against
the Citizenship Amendment Act, 2019 ('CAA', for short) passed by
Parliament and the exercise undertaken by the Central Government to
create a database of citizens called the National Register of Citizens
('NRC', for short); and the gravamen of the allegation is that as part
of such protests, the appellant along with co-conspirators instigated
the local population in certain Muslim dominated areas of Delhi,
particularly women, and incited in them feelings of persecution,
which subsequently led to violence and rioting.
6. The sequence of the appellant's arrest in the various cases mentioned
above also deserves to be noticed. On 21.05.2020, an investigating
team from P.S.: Crime Branch visited the appellant's residence and
served upon her a notice directing her to join investigation. Two days
later, that is on 23.05.2020, the appellant was arrested by police
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officers from P.S.: Jafrabad in FIR No. 48/2020; and upon being
produced before the learned Duty Metropolitan Magistrate, the
appellant was released on regular bail on 24.05.2020, that is on the
very next day, with an observation that the "accused was merely
protesting against the NRC and CAA and accused did not indulged in
any violence". Immediately upon being released on bail by the learned
Duty Metropolitan Magistrate, then-and-there in the same court-room,
the appellant was re-arrested by police officers from P.S.: Crime
Branch in FIR No. 50/2020. Thereafter, while she was in judicial
custody in Tihar Jail in FIR No. 50/2020, on 29.05.2020 she was
arrested in the subject FIR namely FIR No. 59/2020; and then again
on 30.05.2020, the appellant was also arrested in FIR No. 250/2019.
7. As recorded above, the appellant has been admitted to regular bail in
FIR No. 48/2020 vidé order dated 24.05.2020; in FIR No. 250/2019
vidé order dated 02.06.2020; and in FIR No. 50/2020 vidé order dated
17.09.2020 by the concerned courts. It bears mentioning that at the
time the appellant was arrested on 29.05.2020, while she was in Tihar
Jail, the Investigating Officer did not seek her police custody in the
subject FIR; but sought police custody in FIR No. 250/2019 for 04
days on 30.05.2020, which was declined and she was remanded to 04
days judicial custody in FIR No. 250/2019. Subsequently, on an
application, police custody of 03 days was granted in FIR No
250/2019 till 02.06.2020. Subsequently on 06.06.2020, the appellant
was remanded to 02 days police custody in the subject FIR,
whereafter she was returned to judicial custody on 08.06.2020 and has
remained there ever since.
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8. As per the record therefore, the appellant has 04 FIRs registered
against her, all of which however appear to arise from the same event,
namely protests against the CAA and the NRC, in which she is
alleged to have participated. It deserves to be noted that though FIR
No. 59/2020, namely the subject FIR, was registered on 06.03.2020,
the appellant was not arrested in the subject FIR until almost 03
months later i.e., till 29.05.2020.
9. The investigation in the subject FIR is complete. Charge-sheet dated
16.09.2020 has been filed inter alia naming the appellant as one of
the accused persons; and although 02 supplementary charge-sheets
dated 22.11.2020 and 01.03.2021 have also been filed in the subject
FIR, admittedly, the other charge-sheets do not concern the appellant,
and are therefore irrelevant for purposes of the present appeal.
10. The court is informed that vidé order dated 17.09.2020 the learned
Special Court has taken cognizance of the offences alleged in the
subject charge-sheet, except offences under section 124A / 153A / 109
/ 120B IPC, for which sanction for prosecution was still awaited from
the State Government as of the date of passing of the impugned order.
However, charges have not yet been framed against the accused
persons.
11. Although earlier-on, vidé order dated 10.11.2020 in Crl. M. C. No.
2119/2020 filed by the State, a learned Single Judge of this court had
stayed further proceedings in the trial of the subject FIR, we are
informed that that stay order has since been vacated vidé order dated
23.03.2021 made by the learned Single Judge.
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Submissions on behalf of the Appellant
12. Mr. Adit S. Pujari, learned counsel appearing on behalf of the
appellant, submits that in essence, the allegations contained in the
subject charge-sheet against the present appellant Devangana Kalita
are almost the same as those against co-accused Natasha Narwal, who
has also preferred a criminal appeal bearing Crl. A. No. 82/2021
before this court the order made by the learned Special Court rejecting
her bail application.
13. Counsel points-out that on a perusal of the subject charge-sheet, it
will be seen that the names of the appellant and of co-accused
Natasha Narwal appear more or less in the same breath, arising from
alleged WhatsApp messages and other evidence sought to be cited by
the prosecuting agency in the case. If anything, Mr. Pujari points-out,
fewer allegations have been made against the appellant in the subject
charge-sheet of involvement in the protests. For this reason in fact,
Mr. Pujari has made common submissions in Crl. A. No. 82/2021 and
in the present appeal bearing Crl.A. No. 90/2021.
14. Be that as it may, a brief summary of the submissions made on behalf
of the appellant in the present case is as follows:
(a) The appellant does not deny that she was part of the protests
and the 24x7 sit-in organised predominantly by women at two
separate sites, namely at the 66-foota Road at the Jafrabad
Metro Station, and at a site near Madina Masjid, Seelampur;
but the appellant submits that she was not present at the said
protests sites at the time when violence and riots broke-out in
and around those locations between 22.02.2020 and
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26.02.2020; and in evidence thereof, the appellant seeks to
rely upon her call detail records (CDRs) and CCTV footage of
the cameras installed in that area.
(b) The appellant also contends that she was in no manner
concerned with calling for any violent protests against the
CAA or the NRC, either as part of Pinjra Tod, DPSG, JCC,
Warriors, or 'Auraton ka Inquilab' groups. In fact the
appellant denies that she was a member of the JCC Whatsapp
group at all.
(c) The appellant further gainsays the allegation that she
participated in various meetings as alleged; and also denies
that she was present at various protest sites when violence and
rioting occurred, submitting that such allegations are
supported merely by bald statements of witnesses, most of
whom are protected witnesses, and whose statements came to
be recorded much after the dates of the alleged incidents. The
appellant contends that what would be the best evidence in
support of these allegations, namely the CDRs and relevant
video footage is being intentionally withheld by the
investigating agency since it would belie their allegations.
(d) Counsel also points-out that the investigating agency has not
produced nor even relied upon any statement of an actual
victim of the alleged violence that may name the appellant,
since no such statement exists; and further that, any such
statement would only disprove the appellant's alleged
presence or involvement in the riots and violence. In this
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context, it is urged that copies of the CDRs and video footage
is not being provided to the appellant, though it is the
appellant's submission, that the protests in question were in
fact professionally recorded by a videographer who was
specially engaged by the Delhi Police for the purpose.
(e) Counsel submits that in the subject charge-sheet, the court will
find no reference to any specifics, such as names and
addresses of any actual victims who may have suffered
injuries; nor any evidence of the nature of injuries sustained
nor any MLCs; nor any particulars of persons who may have
died at the locations where the appellant is alleged to have
been present, since such details would contradict the
allegations levelled against the appellant. In fact, counsel
contends that applications moved on behalf of the appellant
before the learned Special Court asking for copies of the
contents/data of the appellant's cellphone that was seized; for
requisitioning her CDRs for the relevant period; and a copy of
the video footage recorded at the instance of the Delhi Police,
have all been rejected by the learned Special Court; and that
thereby, the appellant has been put in a position where no
exculpatory evidence, although collected by and available
with the prosecuting agency, is on record.
(f) The appellant contends that the effort of the State is evidently
to make vague and non-specific allegations of the appellant
being involved some imaginary 'larger conspiracy' and to
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thereby implicate her in events with which she had no
concern.
(g) Counsel contends that the ingredients of the offences alleged
under sections 15, 17 or 18 appearing in Chapters IV and VI
of the UAPA are not made-out even on a plain reading of the
factual allegations levelled against the appellant; and
accordingly, the additional conditionalities, limitations, and
restrictions contained in section 43D(5) of the UAPA would
not apply to the appellant's bail plea. Hence the bail plea must
be decided on the usual and ordinary principles of grant of
bail, that is, the 'triple test' of assessing the flight risk,
evidence tampering and witness intimidation.
(h) Counsel also submits that no notice under section 41A of the
Cr.P.C. was issued to the appellant; yet she was arrested
almost 03 months after the date of registration of the FIR. That
she has always remained available for investigation at her own
residence throughout; and accordingly there is no chance that
she would flee from justice.
(i) Counsel points-out that the subject charge-sheet has already
been filed and therefore all evidence required to be collected is
already available with the investigating agency; that there is
no evidence in the appellant's possession and there is no risk
that she could tamper with any evidence. Furthermore,
considering the appellant's profile, including her educational
background and the fact that she is a student pursuing an
M.Phil.-Ph.d. degree at the Jawaharlal Nehru University, it can
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hardly be said that the appellant would influence any
witnesses, much less intimidate them.
Submissions on behalf of the State
15. The State/Delhi Police has been represented in the matter by Mr. Amit
Mahajan, learned Special Public Prosecutor, who has sought to
explain the appellant's involvement in what is alleged to be a 'larger
conspiracy' of inciting violence and rioting, which led to the events
that occurred in the North-East part of Delhi between 23.03.2020 and
26.02.2020. To this end, Mr. Mahajan has drawn the attention of this
court to certain portions of the subject charge-sheet dated 16.09.2020,
which runs into about 19,000 pages. For ease of reference, the
portions to which attention is drawn are extracted in Annexure-A to
this judgment.
16. The principal allegations levelled by the prosecuting agency against
the appellant are as follows :
(a) It is alleged that the appellant is/was a member of the
women's rights group called Pinjra Tod and various other
groups and formations identified by the WhatsApp groups
named 'Warriors', 'Auraton ka Inquilab', DPSG, and JCC;
and that, as part of such groups, the appellant engaged in a
conspiracy to incite violence and riots in the guise of a protest
against the CAA and the NRC, with the aim and intent of
destabilising the Government. To support this submission, the
State draws attention to the portion of the subject charge-sheet
extracted as Screenshot 1a-1b in Annexure - A attached to this
judgment.
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(b) The appellant is alleged to have been present at a meeting on
23.01.2020 at the office of Pinjra Tod at E-1/13 Seelampur,
Delhi, at which meeting, one of the principal accused advised
the group to escalate their chakkajam agitation (which may
loosely be translated as a form of protest in which protesters
cause complete stoppage of vehicles and blockade of roads);
and advised them that nothing would be achieved by only
giving inflammatory speeches. In this behalf, the State has
drawn attention of this court to the portion of the subject
charge-sheet extracted as Screenshot 2, 3a-3c, 4 and 5 in
Annexure-A attached to this judgment.
(c) It is further alleged that the appellant also attended a meeting
on the night of 16/17.02.2020 at a place called Chand Bagh,
where it is alleged that the conspirators agreed to execute the
chakkajam, in evidence of which the State points to the part of
the subject charge-sheet extracted as Screenshot 6, 7 and 8a-8c
in Annexure-A.
(d) By way of a specific role assigned to her, it is alleged that the
appellant was one of the leaders who organised the protesters
inter alia at a site described as the plot of Chaudhary Mateen
in Jafrabad, Delhi; at another site described as Opposite Tent
Wala School, Jafrabad, Delhi; and also at a Fruit Market in
Seelampur, Delhi. Attention of this court is invited in this
behalf to the portion of the subject charge-sheet extracted as
Screenshot 9, 10, 11, 12 and 13 in Annexure-A.
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(e) The State has also implicated the appellant as one of the co-
conspirators in organizing and instigating the 24x7 sit-in
protests led by around 300 women at the Madina Masjid,
Seelampur; and the protest held on 23.02.2020, when women
protesters occupied the 66-foota Road at Jafrabad Metro
Station, blocking traffic and creating a chakkajam and also
engaging in shouting slogans and instigating the public against
the Government by giving bhadkau-bhashan namely
inflammatory speeches. Support for this allegation is drawn by
the State from the portion of subject charge-sheet appearing as
Screenshot 14a-14b, 15a-15b, 16, 17a-17b, 18, 19, 20a-20b,
21, 22, 23a-23d and 24 in Annexure A.
(f) The appellant is further sought to be implicated in distributing
packets of chilly powder to women protesters, with
instructions to attack the police and the military with it. It is
further alleged that inter alia the appellant asked women and
youngsters to stockpile chilly powder, dandas (sticks), empty
bottles, acid and stones for use when occasion arises. In this
regard, the State refers to the portion of the subject charge-
sheet extracted as Screenshot 25, 26, 27, 28, 29, 30, 31 and 32
in Annexure A.
(g) It is further alleged that the appellant that, along with other
protesting women, proceeded from the Jafrabad protest site to
the Maujpur-Babarpur metro station, which brought them near
the pro-CAA protesters, where it is alleged, that the appellant
distributed chilly powder, bottles, and stones to women
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protesters, which were thrown at the pro-CAA protesters
sitting at that protest site. The State draws the attention of this
court to the portion of the charge-sheet extracted as
Screenshot 33a-33b, 34, 35, 36, 37, 38 and 39a-39b in
Annexure A, to support this allegation.
(h) The State also alleges that, as part of executing the conspiracy,
the appellant was also involved in the actual riots that
occurred in North-East Delhi, though no specific or particular
role has been assigned to her in relation thereto. It is also
alleged that as part of the protests, the perpetrators used
firearms, petrol bombs, acid, iron rods, swords, knives, stones,
sling shots, and chilly powder, etc., to terrorise people and the
society at large. To support this submission, the State
references the portion of the subject charge-sheet extracted as
Screenshot 40, 41a-41c, 42, 43 and 44.
(i) The prosecuting agency seeks to substantiate the foregoing
allegations on the strength of statements of several witnesses,
including many who have been declared as protected
witnesses; and on the basis of video recordings, which the
prosecuting agency says they have seized and which, they say,
show the appellant's presence.
Basis & reasoning of Impugned Order
17. It transpires that the learned Special Court has rejected the bail pleas
filed by co-accused Natasha Narwal (appellant in CRL.A. No.
82/2021) as well as Devangana Kalita (appellant in the present
CRL.A. No. 90/2021) by two separate but almost verbatim orders,
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both dated 28.01.2021. The reasoning that informs the rejection of the
bail pleas is also identical in both orders.
18. For sake of completeness, we may summarise the reasoning which
has impelled the learned Special Court to reject the appellant's bail,
which reasoning we have also referred to in our contemporaneous
judgment dated 15.06.2021 in CRL.A. No. 82/2021 titled 'Natasha
Narwal vs. State'. The learned Special Court has proceeded
essentially on an un-critical acceptance of the allegations contained in
the subject charge-sheet and appears to have given weightage to the
following considerations :
(a) The learned Special Court says that since under section 45 of
the UAPA, previous sanction of the Central Government is
required for a court to take cognizance of any offence under
Chapters IV and VI of the UAPA; and that, before the Central
Government gives such sanction, the Central Government
itself is required to consider the report of an authority to be
appointed by it, which authority is supposed to make an
independent review of the evidence gathered in the course of
investigation, therefore: "In the present case, previous
sanction was taken under UAPA and thus, an independent
review of the evidence gathered during the investigation has
been done by an independent authority after its satisfaction
about the evidence". Accordingly, the learned Special Court
says that since such 'independent review' by an 'independent
authority' must already have been undertaken in respect of the
evidence gathered in the investigation, on the basis of which
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the Central Government has granted sanction for prosecution
for offences under Chapters IV and VI of UAPA, that lends
credence to the allegations. In our reading of the impugned
order, the learned Special Court appears to believe that the
grant of sanction by the Central Government all but obviates
the need for the court to apply its own mind or to consider
whether any offence under Chapters IV and VI of the UAPA is
made out;
(b) The learned Special Court has also proceeded on the basis that
the appellant was a member of Pinjra Tod, DPSG, Warriors,
and 'Auraton ka Inquilab' and was "part of a multi-layered
conspiracy and in regular touch and reporting to the higher
conspirators", which, the learned Special Court concludes,
makes her actions culpable.
19. For one, we would wish to immediately debunk this misconception
that merely because section 45 of the UAPA mandates an independent
review of the evidence gathered by an independent authority
appointed by the Central Government; which independent authority is
to recommend to the Central Government whether or not sanction for
prosecution for offences under the UAPA is to be given, that legal
requirement in itself, in any manner, obviates the need for the court to
apply its own independent mind and to form its own independent
judicial view as to whether any offence under the UAPA is disclosed
in the charge-sheet and in the material placed along with it. It does
not.
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20. In fact we are of the view that the purported independent review of
evidence by a purported independent authority; and the fact that the
Central Government has, based thereupon, granted sanction of
prosecution for offences under Chapters IV or VI of the UAPA, must
never enter the consideration of the court when deciding whether the
ingredients of any offence under the UAPA are disclosed in the
charge-sheet.
21. We must point-out that offences under the UAPA are treated as
extremely serious, inviting very severe punishment; and therefore, the
formation of an independent judicial view by the court at every step
of the way, is imperative.
22. In our contemporaneous judgment dated 15.06.2021 rendered in the
case titled 'Asif Iqbal Tanha vs. State of NCT of Delhi' in CRL. A.
No. 39/2021, we have given our interpretation of the phrase 'terrorist
act' appearing in section 15 of the UAPA and in other related
provisions. We have also expressed our view on the constitutionally
guaranteed right to protest that flows from Article 19(1)(b) of the
Constitution; as also our understanding of the general principles of
bail. Since the present appellant is a co-accused in the same subject
FIR, we would repeat, if only to reiterate, the view taken on these
aspects in the said other case. The view taken in that case is set-out
below.
Interpretation of 'terrorist act' & related provisions
under UAPA
23. In its contemporaneous judgment rendered in Asif Iqbal Tanha
(supra), this court has analysed in detail the provisions engrafting
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'terrorist act' and 'conspiracy' or 'act preparatory' to the commission
of a terrorist act. Without repeating that exercise in the present
judgement, it would be sufficient to recapitulate the position of law in
that regard, as expatiated by this court in the said judgement.
24. As detailed by this court in Asif Iqbal Tanha (supra), the position is
that though the phrase 'terrorist act' has been given a very wide and
detailed definition in section 15, in our considered view, the court
must be careful in employing the definitional words and phrases used
in section 15 in their absolute, literal sense or use them lightly in a
manner that would trivialise the extremely heinous offence of
'terrorist act', without understanding how terrorism is different even
from conventional, heinous crime.
25. In Hitendra Vishnu Thakur & Ors vs. State of Maharashtra & Ors1,
the Hon'ble Supreme Court says that the extent and reach of a
terrorist activity must travel beyond the effect of an ordinary crime
and must not arise merely by causing disturbance of law and order or
even public order. The Hon'ble Supreme Court says that the effect of
terrorist activity must be such that it travels beyond the capacity of the
ordinary law enforcement agencies to deal with it under the ordinary
penal law. The following words in Hitendra Vishnu Thakur (supra)
bear careful attention :
"...'terrorism' is generally an attempt to acquire or maintain power
or control by intimidation and causing fear and helplessness in the
minds of the people at large or any section thereof and is a totally
abnormal phenomenon ...".
(emphasis supplied)
1 (1994) 4 SCC 602.
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26. Furthermore, in the same judgment that the Hon'ble Supreme Court
says:
"...it is not the intention of the Legislature that every criminal
should be tried under TADA, where the fall out of his activity does
not extend beyond the normal frontiers of the ordinary criminal
activity. Every 'terrorist' may be a criminal but every criminal
cannot be given the label of a 'terrorist' only to set in motion the
more stringent provisions of TADA ..."
(emphasis supplied)
27. The Hon'ble Supreme Court has further explained the concept of
terrorism in People's Union For Civil Liberties & Anr. vs. Union of
India2 ('PUCL', for short) in which decision, quoting Mohd. Iqbal M.
Shaikh & Ors. vs. State of Maharashtra3, the Hon'ble Supreme
Court says:
"...it may be possible to describe it as use of violence when its most
important result is not merely the physical and mental damage of
the victim but the prolonged psychological effect it produces or
has the potential of producing on the society as a whole ..."
(emphasis supplied)
28. In PUCL (supra), the Hon'ble Supreme Court also observes that:
"... Terrorist acts are meant to destabilise the nation by
challenging its sovereignty and integrity, to raze the constitutional
principles that we hold dear, to create a psyche of fear and
anarchism among common people, to tear apart the secular fabric,
to overthrow democratically elected government, to promote
prejudice and bigotry, to demoralise the security forces, to thwart
the economic progress and development and so on. This cannot be
2 (2004) 9 SCC 580.
3 (1998) 4 SCC 494.
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equated with a usual law and order problem within a State. On the
other hand, it is inter-State, international or cross-border in
character. Fight against the overt and covert acts of terrorism is not
a regular criminal justice endeavour. Rather, it is defence of our
nation and its citizens. It is a challenge to the whole nation and
invisible force of Indianness that binds this great nation
together ..."
(emphasis supplied)
29. More recently, in Yakub Abdul Razak Memon vs State of
Maharashtra through CBI, Bombay4, the Hon'ble Supreme Court
refers to acts of terrorism in the following words:
"... Acts of terrorism can range from threats to actual
assassinations, kidnappings, airline hijackings, bomb scares, car
bombs, building explosions, mailing of dangerous materials,
computer based attacks and the use of chemical, biological, and
nuclear weapons--weapons of mass destruction (WMD)"
(emphasis supplied)
30. As this Court has held in Asif Iqbal Tanha (supra) therefore, in our
view, although the definition of 'terrorist act' in section 15 UAPA is
wide and even somewhat vague, the definition must partake of the
essential character of terrorism and the phrase 'terrorist act' cannot
be permitted to be applied in a cavalier manner to criminal acts or
omissions that fall squarely within the definition of conventional
offences as defined inter alia under the IPC. We must not forget the
principle laid down by the Constitution Bench of the Hon'ble
Supreme Court in A.K. Roy vs. Union of India and Ors.5 where it
4 (2013) 13 SCC 1.
5 (1982) 1 SCC 271.
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says that the requirement that crimes must be defined with an
appropriate definitiveness is a fundamental concept of criminal law
and must be regarded as a pervading theme of our Constitution
since the decision in Maneka Gandhi vs. Union of India6; and that
the underlying principle is that every person is entitled to be informed
as to what the State commands or permits and the life and liberty of
the person cannot be put on peril of an ambiguity. The Constitution
Bench further says that to stand true to this principle, what is expected
is that the language of the law must contain adequate warning of the
conduct which may fall within the proscribed area 'when measured
by common understanding'. Most importantly, the Constitution
Bench says:
"... These expressions, though they are difficult to define, do not
elude a just application to practical situations. The use of language
carries with it the inconvenience of the imperfections of
language...".
"...We must, however, utter a word of caution that since the concepts
are not defined, undoubtedly because they are not capable of a
precise definition, courts must strive to give to those concepts a
narrower construction than what the literal words suggest ...".
(emphasis supplied)
31. We must also carefully note the words of another Constitution Bench
of the Hon'ble Supreme Court in Sanjay Dutt vs. State through CBI
(II)7 to the effect that when law visits a person with serious penal
consequences, courts must take extra care to ensure that those to
6 1978 (1) SCC 248.
7 (1994) 5 SCC 410.
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whom the legislature did not intend to be covered by the express
language of the statute "are not roped in by stretching the law".
32. Our jurisprudence therefore dictates that where a provision of law
which contains serious penal consequences is vague or widely
worded, such provision must be construed narrowly to bring it within
the constitutional framework; and most importantly, must be applied
in a just and fair way, lest it unjustly draw within its ambit persons
whom the Legislature never intended to punish. Where the court finds
that an act or omission is adequately addressed and dealt with by the
ordinary penal law of the land, the court must not countenance a State
agency 'crying wolf'.
33. Upon a careful consideration of the aforesaid verdicts of the Hon'ble
Supreme Court, in our opinion, the intent and purpose of Parliament
in enacting the UAPA and in amending it in 2004 and 2008 to bring
terrorist activity within its scope, was and could only have been, to
deal with matters of profound impact on the 'Defence of India',
nothing more and nothing less. Had that not been the case, UAPA
could not have been enacted by Parliament since the only entries in
List-I of the Seventh Schedule to the Constitution that would bring the
statute within the legislative competence of Parliament are Entry 1
read with Entry 93 relating to the Defence of India and offences with
respect to the Defence of India. It was not the intent, nor purpose of
enacting UAPA that other offences of the usual and ordinary kind,
however grave, egregious or heinous in their nature and extent,
should also be covered by UAPA, since such conventional matters
would have fallen within Entry 1 of List-II (State List) and/or Entry 1
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of List-III (Concurrent List) of the Seventh Schedule of our
Constitution. This is the only possible view that can be taken if we are
to lean in favour of constitutionality of the provisions of section 15,
17 and 18 of the UAPA, as we must.
Right to Protest
34. As in Asif Iqbal Tanha (supra), since this matter also emanates from
protests organised by certain persons against the CAA and the NRC;
and since the State alleges that these were not ordinary protests but
were of a kind that have shaken, or are 'likely' to have shaken, the
entire foundations of our Nation, we must discuss what the law
considers as permissible contours of a protest that would not threaten
our Nation.
35. In this context, we are required to examine, as to when the
constitutionally guaranteed right to protest flowing from the right
under Article 19(1)(b) of the Constitution to "assemble peaceably and
without arms", turns into a cognizable offence under the ordinary
penal law; and when the right to protest gets further vitiated and
becomes a terrorist act, or a conspiracy or an act preparatory, to
commission of a terrorist act under the UAPA.
36. The observations of the Hon'ble Supreme Court in Mazdoor Kisan
Shakti Sangathan vs Union of India and Anr8 give the most lucid
answer, explaining the contours of legitimate protest. In the said
decision, the Hon'ble Supreme Court says that legitimate dissent is a
distinguishable feature of any democracy and the question is not
8 (2018) 17 SCC 324.
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whether the issue raised by the protestors is right or wrong or
whether it is justified or unjustified, since people have the right to
express their views; and a particular cause, which in the first instance,
may appear to be insignificant or irrelevant may gain momentum and
acceptability when it is duly voiced and debated. The Hon'ble
Supreme Court further says that a demonstration may take various
forms: it may be noisy, disorderly and even violent, in which case it
would not fall within the permissible limits of Article 19(1)(a) or
19(1)(b) and in such a case the Government has the power to regulate,
including prohibit, such protest or demonstration. The Government
may even prohibit public meetings, demonstrations or protests on
streets or highways to avoid nuisance or disturbance of traffic but the
Government cannot close all streets or open areas for public meetings
thereby defeating the fundamental right that flows from Article 19(1)
(a) and 19(1)(b) of the Constitution.
37. In the present case, we are not deciding if the protests, in organising
which the appellant is alleged to have been involved, were within the
constitutionally guaranteed right to assembly, or whether they crossed
the limit of what is permissible under Article 19(1)(a) and 19(1)(b)
and became non-peaceful protests. However, what we find is that, for
one there is nothing to say that the Government had prohibited the
protest in the first instance. What we know is that offences, if any, that
are alleged to have been committed by reason of the protests having
been turned non-peaceful, are subject matter of FIR Nos. 48/2020 and
50/2020, in which the appellant is one of the accused and in which the
appellant has been admitted to bail and will face trial in due course.
There is absolutely nothing in the subject charge-sheet, by way of any
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specific or particularised allegation, that would show the possible
commission of a 'terrorist act' within the meaning of section 15
UAPA; or an act of 'raising funds' to commit a terrorist act under
section 17; or an act of 'conspiracy' to commit or an 'act preparatory'
to commit, a terrorist act within the meaning of section 18 UAPA.
Accordingly, prima-facie we are unable to discern in the subject
charge-sheet the elemental factual ingredients that are a must to
found any of the offences defined under section 15, 17 or 18 UAPA.
38. In our view, the subject charge-sheet and the material filed therewith
does not contain any specific, particularised, factual allegations that
would make-out the ingredients of the offences under sections 15, 17
or 18 UAPA. As we have observed in Asif Iqbal Tanha (supra),
alleging extremely grave and serious penal offences under sections
15, 17 and 18 UAPA against people frivolously, would undermine the
intent and purpose of the Parliament in enacting a law that is meant to
address threats to the very existence of our Nation. Wanton use of
serious penal provisions would only trivialise them. Whatever other
offence(s) the appellant may or may not have committed, at least on a
prima facie view, the State has been unable to persuade us that the
accusations against the appellant show commission of offences under
sections 15, 17 or 18 UAPA.
39. Since, in the opinion of this Court, no offence under sections 15, 17 or
18 UAPA is made-out against the appellant on a prima facie
appreciation of the subject charge-sheet and the material collected and
cited by the prosecution, the additional conditions, limitations and
restrictions on grant of bail under section 43D(5) UAPA do not apply;
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and the court must therefore apply the usual and ordinary
considerations for bail under section 439 Cr.P.C.
General Principles of Bail
40. The general principles of grant or refusal of bail are well settled.
Since a detailed discussion of such principles has recently been made
by us in our judgment in Asif Iqbal Tanha (supra), only a brief
reiteration of the principles would suffice in the present case, since
both cases arise from the same subject FIR.
41. Though grant of bail involves exercise of discretionary power by the
court, as always, the exercise of discretion must be judicious and not
perfunctory or as a matter of course. In granting bail the court must
keep in mind not only the nature of accusations but also the severity
of the punishment and the nature of evidence in support of the
accusations. Apart from being prima facie satisfied as regards the
charges levelled; the court must also reasonably assess the
apprehension of flight risk, evidence tampering and witness
intimidation; with careful regard to the genuineness of the
prosecution. The court must also consider the character, behaviour,
means, position and standing of the accused and the likelihood of the
offence being repeated.9
42. Furthermore, we remind ourselves that the object of bail is neither
punitive nor preventative but is principally to secure the presence of
the accused at the trial; and that punishment begins only after
conviction and that everyone is deemed to be innocent until duly tried
9 cf. Ash Mohammad vs Shiv Raj Singh & Anr., (2012) 9 SCC 446 : para 8 and 11.
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and found guilty. It is well settled that detention in custody pending
completion of trial can cause great hardship to an accused; that it is
improper for any court to refuse bail as a mark of disapproval of the
past conduct or to refuse bail to a person yet to be convicted only to
give him a taste of imprisonment as a lesson. "Necessity" to secure
the attendance of an accused at the trial, the Hon'ble Supreme Court
has held, is the operative test.10 It also requires to be understood that
though the larger interest of the public or the State and other similar
considerations are also relevant, there is no hard and fast rule and
each case has to be considered on its own facts, circumstances and
merits.11
43. Since courts often tend to fall into this error, it is extremely important
to bear in mind the words of the Hon'ble Supreme Court that grant of
bail cannot be thwarted merely by asserting that an offence is grave,
since the gravity of the offence can only beget the length of the
sentence, which may be awarded upon conclusion of the trial.12
44. We must also never forget the profound insight of V.R. Krishna Iyer,
J., when he said that the consequences of pre-trial detention are
grave; that by being kept in custody, an undertrial accused, though
presumed innocent, is subjected to psychological and physical
deprivations of jail life; that the accused is also prevented from
contributing to the preparation of the defence; and that the burden of
10 cf. Sanjay Chandra vs CBI, (2012) 1 SCC 40 : para 21-23.
11 cf. P. Chidambaram vs. CBI, 2019 SCC OnLine SC 1380 : para 22.
12 cf. P. Chidambaram vs. Directorate of Enforcement, 2019 SCC OnLine SC 1549 : para 12.
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pre-trial detention frequently falls heavily on the innocent members of
the family.13
Discussion & Conclusions
45. From the foregoing discussion the position that emerges is this. There
is no contest that, as member of certain women's rights organisations
and other groups, the appellant did participate and help organise
protests against the CAA and the NRC in Delhi. Considering
however, that the right to protest is a fundamental right that flows
from the constitutionally guaranteed right to assemble peaceably and
without arms enshrined in Article 19(1)(b) of our Constitution, surely
the right to protest is not outlawed and cannot be termed as a 'terrorist
act' within the meaning of the UAPA, unless of course the ingredients
of the offences under sections 15, 17 and/or 18 of the UAPA are
clearly discernible from the factual allegations contained in charge-
sheet and the material filed therewith. So, the question we must
answer is, whether on a plain, straightforward and objective reading
of the allegations against the appellant contained in the subject
charge-sheet read with the purported WhatsApp chats and statements
of various witnesses relied upon by the State, do such allegations
impute to the appellant any specific, particularised or definite act,
which answers the ingredients of the offences under sections 15, 17
and/or 18 of the UAPA?
46. In fact, on a reading of the portions of the subject charge-sheet to
which attention has been invited by the State and which have been
extracted in the screenshots in Annexure- A to this judgment, we find
13 cf. Moti Ram vs. State of M.P., (1978) 4 SCC 47 : para 14.
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that invariably the appellant's name appears along with that of several
other alleged co-conspirators and even the instructions and directions
allegedly issued by the main accused persons are not directed to the
appellant. In our reading of the subject charge-sheet and the material
included in it, therefore, prima-facie the allegations made against the
appellant are not even borne-out from the material on which they are
based.
47. We are afraid, that in our opinion, shorn-off the superfluous verbiage,
hyperbole and the stretched inferences drawn from them by the
prosecuting agency, the factual allegations made against the appellant
do not prima facie disclose the commission of any offence under
sections 15, 17 and/or 18 of the UAPA. As expatiated by the Hon'ble
Supreme Court in the precedents cited above, protests against
Governmental and Parliamentary actions are legitimate; and though
such protests are expected to be peaceful and non-violent, it is not
uncommon for protesters to push the limits permissible in law. The
making of inflammatory speeches, organising chakkajams, and such
like actions are not uncommon when there is widespread opposition
to Governmental or Parliamentary actions. Even if we assume for the
sake of argument, without expressing any view thereon, that in the
present case inflammatory speeches, chakkajams, instigation of
women protesters and other actions, to which the appellant is alleged
to have been party, crossed the line of peaceful protests permissible
under our Constitutional guarantee, that however would yet not
amount to commission of a 'terrorist act' or a 'conspiracy' or an 'act
preparatory' to the commission of a terrorist act as understood under
the UAPA.
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48. We are constrained to say, that it appears, that in its anxiety to
suppress dissent and in the morbid fear that matters may get out of
hand, the State has blurred the line between the constitutionally
guaranteed 'right to protest' and 'terrorist activity'. If such blurring
gains traction, democracy would be in peril.
49. Therefore, having bestowed our anxious consideration to the
allegations contained in charge-sheet dated 16.09.2020 and the
material adduced therewith, we do not think that the accusations made
against the appellant under sections 15, 17 and/or 18 of the UAPA are
prima facie true. In view thereof, the stringent conditionalities
contained in section 43D(5) of the UAPA will not apply; and the
appellant's bail plea would need to be considered on the general
principles of bail enunciated above.
50. Since the subject charge-sheet has been filed and cognisance of some
of the offences has been taken, but charges are yet to be framed by the
learned Special Court; and there are around 740 prosecution
witnesses, including public witnesses, protected witnesses, and police
witnesses, who would have to be examined during trial, there is
hardly any doubt that the process will take a very long time, since not
even one witness has so far been examined. The prevailing pandemic
and the consequent truncated functioning of courts, will only add to
the delay.
51. It is the conceded position that the appellant has already been granted
regular bail in FIR Nos. 250/2019, 48/2020 and 50/2020 vidé orders
dated 02.06.2020, 24.05.2020 and 01.09.2020 respectively made by
the concerned courts; and as we have noticed, in order dated
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24.05.2020 the court has in fact recorded that the appellant had only
engaged in protests against the CAA and the NRC but did not indulge
in any violence. From the factual matrix it appears that there is
evidently some overlap between the allegations against the appellant
as contained in the other FIRs and in the subject FIR, since the
offences alleged in all cases arise from alleged violence and rioting
that occurred in the North-East Delhi between 22.02.2020 and
26.02.2020.
52. Furthermore, considering the educational background, profile and
appellant's position in life, we also see no reason to suspect or
apprehend that the appellant is either a flight risk or that she will
indulge in evidence tampering, or witness intimidation, or will
otherwise impede the trial in any way.
53. Due notice is also taken of the fact that the appellant was not arrested
in the subject FIR for nearly 03 months after the date of its
registration.
54. In the circumstances, we see no reason, basis or justification to detain
the appellant in judicial custody in the subject FIR any longer.
55. As a sequitur to the above discussion, we deem it appropriate to allow
the present appeal and set-aside impugned order dated 28.01.2021
made by the learned Special Court in case FIR No. 59/2020 dated
06.03.2020 registered at P.S.: Special Cell, Delhi.
56. Accordingly, we also admit the appellant to regular bail until
conclusion of the trial subject to the following conditions:
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(a) The appellant shall furnish a personal bond in the sum of Rs.
50,000/- (Rs. Fifty Thousand Only) with 02 local sureties in
the like amount, to the satisfaction of the learned trial court;
(b) The appellant shall furnish to the Investigating Officer/S.H.O.
a cellphone number on which the appellant may be contacted
at any time and shall ensure that the number is kept active and
switched-on at all times;
(c) The appellant shall ordinarily reside at her place of residence
as per the trial court records and shall inform the Investigating
Officer if she changes her usual place of residence;
(d) If the appellant has a passport, she shall surrender the same to
the learned trial court and shall not travel out of the country
without prior permission of the learned trial court;
(e) The appellant shall not contact, nor visit, nor offer any
inducement, threat or promise to any of the prosecution
witnesses or other persons acquainted with the facts of case.
The appellant shall not tamper with evidence nor otherwise
indulge in any act or omission that is unlawful or that would
prejudice the proceedings in the pending trial.
57. Nothing in this order shall be construed as an expression on the merits
of the pending trial.
58. A copy of this order be sent to the concerned Jail Superintendent.
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59. The appeal stands disposed of in the above terms.
60. Pending applications, if any, are also disposed of.
SIDDHARTH MRIDUL, J
ANUP JAIRAM BHAMBHANI, J
JUNE 15 , 2021
ds
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ANNEXURE-A
RELEVANT SCREENSHOTS EXTRACTED
FROM THE SUBJECT CHARGE-SHEET
The names and other identifying details of persons other than the
appellant and co-accused Natasha Narwal have been redacted by this
Court.
Screenshot 1a
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Screenshot 1b
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Screenshot 2
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Screenshot 3a
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Screenshot 3c
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