On Tuesday, the Delhi High Court gave bail on humanitarian grounds to Safoora Zargar, a 27-year-old student of the Jamia Millia Islamia University who is five months pregnant.
The bail came after a steep struggle since Zargar had been booked under the Unlawful Activities Prevention Act in a case related to the communal violence that erupted in North East Delhi in February.
In fact, an analysis of bail proceedings in Delhi communal violence cases, including the case against Zargar, shows how the police have relied on the draconian law to keep people in jail.
Even when they have not invoked UAPA, the police have been quick to arrest the accused in a second case after they obtained bail in the original case against them.
Added to this, the courts have been inconsistent in the way they have handled the bail applications.
Bail followed by arrest
Delhi police first arrested Zargar on April 10 in a case filed on February 24 in the Jaffrabad police station. The first information report accused several people of instigating protests against the Citizenship Amendment Act near the Jaffrabad metro station on February 22 and triggering the riots that followed. Zargar was not among the 14 accused initially named in the FIR.
When she was awarded bail in this case by a sessions court on April 13, she was immediately arrested in another first information report filed on March 6. This case related to the larger purported conspiracy behind the communal violence and included charges under the Unlawful Activities Prevention Act. Zargar was accused of delivering an inflammatory speech at Chandbagh in North East Delhi on February 24, which has been cited as an instigation for the violence.
On June 4, the sessions court denied her bail, stating that prima facie there was evidence of her involvement in the case. Her lawyers filed an appeal in the Delhi High Court.
On Tuesday, June 23, following a submission by Solicitor General Tushar Mehta that the police were not averse to the court granting bail to Zargar on humanitarian grounds given her health status, the Delhi High Court released her with several stipulations. This included directives to strictly stay away from the activities for which she had been arrested and to keep in touch with the investigation officer over phone at least once every 15 days.
Zargar’s battle for bail raises doubts over whether the Delhi Police included her in an FIR with provisions of the Unlawful Activities Prevention Act with the sole aim of keeping her in custody. Given the clauses in the UAPA, getting bail is much more difficult when compared to cases in which only the Indian Penal Code has been invoked.
This is evident from another order passed by a sessions court last week awarding bail to Faisal Farooq, accused of instigating violence at a school in Shiv Vihar. Farooq is the manager of Rajdhani Public School and has been charged with fueling the violence in the areathat damaged the adjacent DRP Convent School on February 24. The police did not use UAPA in this case.
In the bail order, the court made a significant observation:
“Admittedly, in none of the CCTV footages, the presence of applicant is there. If it is prima-facie noticeable that accused was not present at the scene of occurrence then naturally, the evidence against him in respect of sections 397/395/436/455 IPC will fall short.”
The court also noted attempts by the investigation officer to improve the statements of witnesses from those initially recorded before a magistrate to make it favourable to the prosecution. A newspaper reporter Farooq spoke to over the phone was misrepresented as a conversation part of the conspiracy.
On Monday, June 22, the Delhi High Court stayed the bail awarded to Farooq, after the Delhi Police filed an appeal. The matter is now scheduled for hearing on July 1.
During the hearing, the police informed the High Court that Farooq has been arrested in another case on June 22 and is in custody for the same.
According to Farooq’s lawyers RK Kochar and Gaurav Kochar, the second case is also related to the same violence outside the Rajdhani Public School, filed by the Dayalpur Police station on February 28.
On Wednesday, June 24, a magistrate
dismissed the plea of the police to grant four days of police custody, noting that the ingredients of the two cases are similar and that the accused has already been in judicial custody for four months.
“After keeping quite for four months, the police have suddenly arrested him in the new case after he was granted bail in the other case,” the lawyers said. “We have argued that the only purpose of the second case is to keep him in jail.”
The importance of UAPA
Unlike Farooq’s case, the June 4 order of a sessions court that denied Zargar bail refused to accept her absence from the scene of violence as evidence for her innocence. This is primarily because the FIR under which Zargar was arrested had sections under the draconian UAPA. The court said even though there may not be direct evidence to pin her down, her role in the larger conspiracy cannot be discounted. “When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire,” the court said.
Even on Tuesday, she managed to get bail from the Delhi High Court only because of her health condition. Others arrested in the same case have been unable to obtain such orders.
For example, Gulfisha Fatima, a 28-year-old woman booked for offences under the UAPA in the same FIR, was denied bail by the Delhi High Court on Monday. She was arrested in the case on April 9, a day before Zargar’s arrest. Her name too was added to the FIR after she obtained bail in another case which did not have UAPA sections.
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