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JNU student Sharjeel Imam was denied bail on Friday, October 22, after the additional sessions judge of a Delhi court observed that the “tone and tenor of the speech” which he delivered on December 13, 2019 was “incendiary” and tended to have “a debilitating effect upon public tranquility, communal peace and harmony of the society”.
The judge reached his conclusion despite noting that the evidence to support the police theory that persons instigated by his speech had indulged in acts of rioting, mischief, attacks on the police, etc., was scanty and sketchy.
“Neither any eye witness has been cited by prosecution nor there is any other evidence on record to suggest that co-accused got instigated and committed the alleged act of rioting etc upon hearing the speech of applicant/accused Sharjeel Imam. Further, there is no evidence corroborating the version of prosecution that alleged rioteers/co-accused were a part of the audience addressed by applicant/accused Sharjeel Imam on 13.12.2019,” the judge, Anuj Agrawal, noted in Paragraph 10 of his order.
Continuing further, he said: “Upon specific inquiry by this court, Ld. Special Public Prosecutor fairly conceded that at this stage, there is no material available with the prosecution to the effect that applicant/accused and other co-accused persons were members of any common social platform viz WhatsApp etc so as to fasten the liability of acts of co-accused upon present applicant with aid of section 109 IPC. The essential link between the speech dated 13.12.2019 and the subsequent acts of co-accused is conspicuously missing in the instant case”.
In Paragraph 11, the judge added:
“The theory as propounded by investigating agency leaves gaping holes which leaves an incomplete picture unless the gaps are filled by resorting to surmises and conjectures or by essentially relying upon the disclosure statement of applicant/accused Sharjeel Imam and co-accused. In either case, it is not legally permissible to build the edifice of the prosecution version upon the foundation of imagination or upon inadmissible confession before a police officer.
“Once the legally impermissible foundation of imaginative thinking and disclosure statement of accused/co-accused are removed, the prosecution version on this count appears to be crumbling like a house of cards. Though Ld. Special Public Prosecutor argued that said disclosure statements are relevant under section 8 of Indian Evidence Act, however, the said argument appears to be nothing but a desperate attempt on his part to save the day for prosecution.”
The judge, interestingly, did not even conclude that the allegations against Imam for offences under Sections 124A (sedition) and 153A (promoting enmity between different groups on grounds of religion) were prima facie valid. Among the sections which the police invoked against Imam, only these two remained after the judge found other sections of IPC and sections of Prevention of Damage to Public Property Act and Arms Act against Imam inapplicable in the absence of any clear link between the speech and the ensuing violence.
In Paragraph 15, the judge conceded that in view of the settled position of law, the issue of whether Sharjeel’s speech would fall within the ambit of Section 124A IPC or not required a deeper analysis at an appropriate stage. “However, suffice it would be to observe [sic] that a cursory and plain reading of the speech dated 13.12.2019 reveals that the same is clearly on communal/divisive lines.”
Obviously, the judge was hinting that even if Section 124A IPC was not applicable, Imam may be guilty of violating Section 153A IPC. However, he overlooked the fact that settled law is against his conclusion that Section 153A IPC could be invoked against Imam, if his speech were to be examined both as a whole and in parts.
In his December 13, 2019 speech, Imam had only appealed to his community to oppose the Citizenship (Amendment )Act and the National Registry of Citizens. Though he called for a chakka jam (blocking traffic on the roads), he did not promote enmity between people of two different religions, which would have invited the application of Section 153A of IPC. No doubt, he wanted people of his community to protest against the government which introduced the controversial and discriminatory laws, but he did not blame another community for these laws. Hence, there can be no question of his promoting enmity.
In a catena of cases, higher courts have held that Section 153A IPC can apply only when the accused has sought to promote enmity between people of two different faiths. Judge Anuj Agarwal’s conclusion, therefore, was inconsistent with the facts of the case.
Significantly, judge Agarwal began hos order with a quote from Swami Vivekananda: “We are what our thoughts have made us; so take care about what you think; words are secondary; thoughts live; they travel far.”
The inappropriateness of relying on a quote from Swami Vivekananda, which had no connection with the facts of the case, apart from the absence of any legal significance, loomed large as the judge gave the impression that the failure of the police to establish a clear link between Imam’s speech and the ensuing violence could be condoned.
Assuming that judge may be correct in relying on what Swami Vivekananda might have said in a different context in order to justify his denial of bail to Imam, one wonders how the judge read Imam’s mind, even though the prosecution itself had not made any such claim. Telepathy? If so, the judge could have at least explained what was bad about Imam’s “thoughts” – as opposed to his words which were expressed in his December 13, 2019 speech – which, according to him, were legally prosecutable. Leaving it to be inferred by the public is legally unsustainable as well as capable of making the entire order appear ridiculous.