Point of Law: Rejection of application of Bail – Rioting/violence – Protest against the CAA -Petitioner Intended to paralyse the governance of Delhi by violent means to force the Union Govt, to withdraw CAA

JUDGMENT :

ANUP JAIRAM BHAMBHANI J.

Introduction

By way of the present appeal under section 21(4) of the National Investigation Agency Act 2008 (‘NIA Act’, for short), the appellant Asif Iqbal Tanha, a 25 year old student, pursuing his final year of the B.A. (Hons.). (Persian) Programme at the Jamia Milia Islamia University, New Delhi (‘Jamia University’, for short) impugns order dated 26.10.2020 made by the learned Special Court (‘impugned order’, for short), whereby the appellant’s second application seeking enlargement on bail has been rejected.

2. The appellant is presently in judicial custody, having been arrested on 19.05.2020 in case FIR No. 59/2020 dated 06.03.2020 registered under sections 147/148/149/120B Indian Penal Code 1860 (‘IPC’, for short) at P.S.: Crime Branch (‘subject FIR’, for short) in connection with the incidents of violence and rioting that occurred in North-East Delhi between 22.02.2020 and 26.02.2020. It may be noted that 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 to the subject FIR. At the time of his arrest in the subject FIR on 19.05.2020, the appellant was already in judicial custody in a different case arising from FIR No. 298/2019 dated 16.12.2019 registered under sections 143/147/148/149/435/427/323/186/353/332/308/341/120B/34 IPC and sections 3/4 of the PDPP Act at P.S.: Jamia Nagar, New Delhi. For completeness it may be mentioned that FIR No. 298/2019 was registered in connection with protests held in Delhi in 2019 against the Citizenship (Amendment) Act 2019 (‘CAA’, for short) passed by the Parliament and the exercise proposed to be undertaken by the Central Government for creating a National Register of Citizens (‘NRC’, for short). It must be mentioned that in case FIR No. 298/2019 the appellant has since been admitted to regular bail by the learned Sessions Court, Saket, New Delhi.

3. Charge-sheet dated 16.09.2020 has been filed in the subject FIR inter alia against the appellant (‘subject charge-sheet’, for short); and though supplementary charge-sheets dated 22.11.2020 and 01.03.2021 have also been filed in the subject FIR, the said other charge-sheets do not relate to the appellant and are therefore not relevant for purposes of the present proceedings. 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 sections 124A/153A/109/120B of the IPC, since requisite sanction for prosecution from the State Government was awaited for those offences as of the date of the impugned order. Charges have not yet been framed against the appellant.

4. In a Criminal Miscellaneous Petition bearing CRL.M.C. No. 2119/2020 filed by the respondent/State against order of the trial court directing the State to provide a hardcopy of the charge-sheet to all accused persons, further proceedings in the trial before the learned Special Court were stayed by a learned Single Judge of this court vidé order dated 10.11.2020; which stay order has however since been vacated by the learned single Judge vidé order dated 23.03.2021.

Essence of allegations against Appellant & role assigned to him

5. The essential allegations against the appellant as contained in the subject charge-sheet as also set-out in reply dated 24.07.2020 filed by the Special Cell, Delhi Police before the learned Special Court opposing the appellant’s bail application are the following :

a) that the appellant is one of the main conspirators as well as instigators behind the riots that happened in the North-East parts of Delhi from 22.02.2020 to 26.02.2020; that the appellant played an active role in the conspiracy and is one of the ‘masterminds’;

b