Brief Facts of the Case
The Delhi Police arrested JMI student Safoora Zargar for being part of an Unlawful Assembly and Criminal Conspiracy on 10th April, 2020. They granted her bail on 13th April, but was re-arrested the same day, as the Delhi Police added charges of murder and sections of the Unlawful Activities (Prevention) Act, 1967. Section 43D (5) of the Act contains an embargo on grant of bail to accused if the court has reasonable grounds to believe that a prima facie case is made out. The prosecution accused Sarfoora of inciting violence through her speeches.
The violence took place in parts of North East Delhi. She was a part of the protests against the Citizenship (Amendment) Act, 2019(CAA). When Safoora was arrested on 10 th April, she was 3 months pregnant. At the time of her bail hearing, she was 21 weeks pregnant.
Her lawyers sought bail, inter alia on humanitarian grounds, submitting that she is pregnant and suffers from some reproductive diseases. The month of April also saw the outbreak of the Coronavirus Disease (COVID)-19 pandemic all across the country. The risk of her getting infected was also one of the submissions for grant of bail. The court of Additional Sessions Judge, Dharmender Rana denied bail to Safoora observing that there is a prima facie case made out against her.
Arguments by the Applicant
The defence counsel made the following submissions:
a.) The investigative agencies are falsely framing the accused just because she doesn’t approve of the ruling govt.’s policies.
b.) A free flow of ideas and dissent is a symbol of a vibrant democracy. This dissent cannot stifle by the coercive methods of the State.
c.) The applicant has a fundamental right to protest under the Constitution of India. She was peacefully protesting against the CAA under Article 19.
d.) The applicant, as opposed to the prosecution’s case, didn’t make any speech on February 23 at Chand Bagh.
e.) The FIR relied upon by the prosecution states that violence started at 1:00 PM in Chand Bagh. The Call Detail Records (CDR) of the applicant shows that on February 24, she wasn’t even present in the area.
f.) The applicant was infact present at Chand Bagh on Feb 23rd but didn’t make any speech. She made a small speech in Khureji on the same day at 4:00 PM. But, the speech in no way, could incite violence.
g.) The provisions of the UAPA as a peaceful protest or demonstration against a legislation would not cause “disaffection against India”.
Further Submissions by the Applicant
Placing reliance on the case of Kedar Nath v. State of Bihar AIR 1962 SCC 955, they submitted that the Supreme Court has dealt with the term “disaffection”. The act of the person must be of such a nature that it would have a tendency to create disorder and disturbance of peace. Further, the mere presence of the accused at the site of protest, isn’t sufficient to invoke the strict provisions of UAPA. Moreover, the accused is 21 weeks pregnant and seeks bail on humanitarian grounds. She also suffers from PCOD and is prone to a Urinary Tract Infection. Furthermore, she is at the risk of a possible infection from the Coronavirus Outbreak as inmates from three jails of Delhi have tested positive for the disease.
Arguments by the State
The Additional Public Prosecutor opposed the bail application on the following grounds:
a.) There is enough material to show that Safoora played a role in the Delhi Riots. The revoking of provisions of the UAPA is rightful.
b.) Under Section 45D (5) of the UAPA, there lies a statutory embargo on the power of the Court to grant bail to the applicant/accused.
c.) The APP drew the Courts attention to a copy of a Whatsapp chat and statements u/s 161 and 164 of the Cr.P.C. to justify invoking UAPA provisions.
d.) The Court shouldn’t ignore the incriminating evidence at this stage by relying upon the SC judgement in National Investigating Agency v. Zahoor Ahmad Shah Wadali 2019 5 SCC 1. The APP also pointed out the recoveries made in the seizure memo and submitted that the statements of witnesses, the chats, the recoveries and the speeches point to a larger conspiracy.
The Court observed that the right to protest and demonstrate isn’t an absolute right and is restricted under Article 19 (2). Moreover, Any activity which has tendency to incite violence would attract UAPA. Also, in this case there is prima facie evidence to show that there was a conspiracy to blockade the roads and the same would attract Section 339 of the IPC. Lastly, the Statement made by one of the conspirators is available against all other conspirators.
The Court denied bail to the applicant/accused as per the statutory embargo under Section 45 D (5) of the UAPA. But, keeping in mind the health condition of the applicant, Court directed Jail Superintendent to provide her medical assistance.
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