A Delhi court has dismissed the bail plea of Jamia Millia Islamia (JMI) student Asif Iqbal Tanha, arrested under the stringent Unlawful Activities (Prevention) Act, in connection with a case related to larger conspiracy in north-east Delhi riots in February, saying he allegedly played an active role in the entire conspiracy.
Additional Sessions Judge Amitabh Rawat said there were reasonable grounds for believing that the allegations against Tanha were prima facie true.
Tanha was arrested in the case for allegedly being part of a premeditated conspiracy in the riots. "...I deem it fit to state in unequivocal terms that there is freedom to protest available to all the citizens of the country but that is subject to reasonable restrictions," the judge said in his order passed on October 26.
"There is also, no manner of doubt, that every citizen can hold an opinion about any legislation which they construe as unfair in their understanding. The freedom and right to protest against any law is available to all citizens," he said.
The order added however that "vociferous agitation in the guise of Citizenship Amendment Bill" coupled with other activities of violence would show it was meant to cause or intended to cause disaffection against India.
"The entire conspiracy beginning from December 2019 of intentionally blocking roads to cause inconvenience and causing disrupting of the supplies of services, essential to the life of community of India resulting in violence with various means and then leading to February incident with the focus being targeted blocking of roads at mixed population areas and creating panic and attack on police personnel with facade of women protesters in front and leading to riots would be covered by the definition of terrorist act," the court said.
"Acts which threaten the unity and integrity of India, in as much as causing social disharmony and creating terror in any section of the people, by making them feel surrounded resulting in violence, is also a terrorist act," it added.
It said the statement of protected witnesses under Section 164 (recording of statement by judicial magistrate) of the Code of Criminal Procedure (CrPC) showed there was sufficient incriminating material against Tanha and one of the protected witnesses clearly stated that the entire protest plan was done by Pinjra Tod, JCC (Jamia Coordination Committee) members and United Against Hate.
The court added that according to the charge sheet, Tanha had allegedly procured a SIM card on fake ID deliberately, which was later given to co-accused Safoora Zargar and used in JCC WhatsApp group.
"Thus, the accused Asif Iqbal Tanha was closely connected with Sharjeel Imam, Nadeem Khan, Zargar, etc. The accused played a very active role in the entire conspiracy of organizing the so-called protest at the protest sites which resulted in riots, killing numerous people besides injuries and destruction of property," it said. Imam has also been arrested in the case but not chargesheeted yet.
The court said at the stage of bail, the statements of witnesses have to be taken at face value and their veracity would be tested at the time of cross-examination.
"In view of the discussion, since there are reasonable grounds for believing that the accusation against the accused Asif Iqbal Tanha are prima facie true, hence, embargo created by Section 43D of UAPA applies for grant of bail to the accused. Hence, the present application for bail...is dismissed," it said.
Under section 43 D of UAPA, an accused should not be released on bail or on his own bond if the court was of the opinion that the accusation against such person was prima facie true. The court said as per the charge sheet, Tanha was part of one Whatsapp group JMI Coordination Committee from December 17, 2019 and Zargar removed him since they were summoned by the police on January 24, 2020 regarding the December violence in Delhi.
It added that other accused persons were in touch and coordination with each other through other WhatsApp groups. The court said it was not at all necessary that all the conspirators must know each and every detail of the conspiracy.
It further said the contention that Tanha had no role in raising funds for riots was misplaced as other accused persons in the case were alleged to have done this part in the conspiracy. "Moreover, the question of presence of accused at the site in North East Delhi at the time of riots is not a sine-qua-non (essential condition) for a conspiracy case. Hence, the provisions of UAPA have been rightly invoked in the present case." the court said.
During the hearing, advocates Siddharth Aggarwal and Sowjhanya Shankaran, appearing for Tanha, said he was not present in Delhi during the riots and did not visit any of the protest sites where rioting and violence occurred. Aggarwal further argued that there was no physical evidence connecting Tanha to the riots and no allegations with respect to any funds being received by him for terrorist activities.
Special Public Prosecutor Amit Prasad, appearing for the police, opposed the bail plea saying there were statements of protected witnesses in the case which clearly showed the alleged role of Tanha in the conspiracy. Communal clashes had broken out in northeast Delhi on February 24 after violence between citizenship law supporters and protesters spiralled out of control leaving at least 53 people dead and around 200 injured.