The Allahabad High Court while rejecting an application said that the Right to protest does not mean that there is no sanction to unlawful assemblies that indulge in rioting and violence as a means to vindicate their rights, or to convey their point of view. It is not that democracy and sovereignty are at crossroads. It is only that democratic rights have to be exercised in a lawful manner, so that order in society, which sovereignty has to uphold at all costs, is not lost.
A Single Bench of Justice J.J Munir passed this order while hearing an application under section 482 filed by Mohammad Talha and others.
This is an application under Section 482 of the Code of Criminal Procedure, 19731 , seeking to quash the entire proceedings of Criminal Case under Sections 323, 332, 336, 352, 395, 427, 435, 504, 506 and 120B of the Indian Penal Code, 1860, Section 7 of the Criminal Law (Amendment) Act, 1932 and Section 3/4 of the Prevention of Damage to Public Property Act, 1984, Police Station Dakshin Tola, District Mau, pending the Court of the Chief Judicial Magistrate, Mau.
A First Information Report was lodged by Nihar Nandan Kumar, Station House Officer, Police Station Dakshin Tola, District Mau, regarding an incident dated 16.12.2019 in the aftermath of the widespread protest in the country relating to the Citizenship (Amendment) Act, 2019, the National Register of Citizens and Citizenship (Amendment) Bill, 20194 .
The FIR reported that on 16.12.2019, at half past two in the afternoon, a large multitude of people, who were 900-1000 strong, congregated at a certain Mirzahadipura. They were protesting against the NRC and the CAB They were shouting slogans and proceeded to the Mirzahadipura crossing. They shouted slogans there and obstructed public streets. Some of them proceeded again to the crossroads, where some others joined. The congregation of these protestors was addressed by the District Magistrate, the Superintendent of Police, the Additional Superintendent of Police, the City Magistrate and other administrative officers present, but the mob, which has been described as those of rioters, were not prepared to heed counsel. There were also efforts made by other respectable citizens of District Mau, including Imams of mosques and other police officers, but to no avail.
The aggressive members of this unlawful assembly, according to the FIR, abused the Chief Minister, the Prime Minister, the Superintendent of Police and the other administrative officers. They exhorted members of the unlawful assembly to do the police and the administrative officers to death.
At this juncture, the members of the unlawful assembly turned violent and assaulted the Police, the administrative officials and other members of the public with an intent to kill. They hurled brickbats and opened fire with illicit weapons on the Police and the administrative officers with an intent to kill. They also hurled petrol bombs. It is reported that during this period of time, some sniping was also done, employing illicit weapons from rooftops and brickbats were also hurled. All these acts of violence led to public order being torn asunder. The shopkeepers in the neighbourhood pulled down their shutters and the passers-by, including the journalists et cetera made good their escape, abandoning their motorcycles and vehicles. The rioters, who are said to be about 600-700 strong, at this juncture, could not be controlled by any means. On the orders of the District Magistrate, the members of the unlawful assembly were warned for 10-15 minutes on loud-hailers.
However, when nothing worked to restore order, the Police resorted to a light lathi-charge. At this stage, the rioters hurling bombs, brickbats and also taking potshots from their illicit weapons, escaped through different routes. They set afire dozens of motorcycles belonging to members of the public and the police force, besides government vehicles, that were four-wheelers. These were badly damaged. Finally, under the orders of the District Magistrate, in order to control the still ongoing rioting, tear gas shells, numbering about 50, were lobbed, besides chilly bombs. Thereupon, all the rioters escaped towards Rampur Chakiya. This violence had continued up to 06:30 in the evening.
The FIR mentions that the rioters who were attacking the police force and indulging in acts of incendiarism were identified by police personnel present. Those identified have been named in the FIR.
The Police, after investigation, submitted a charge-sheet against 44 of the named accused, whereas another 55 are said to be absconding. The applicants, who have been charge-sheeted, are named in the FIR.
Counsel for the applicants has argued that the first informant in this case is the Station House Officer of Police Station Dakshin Tola, whereas a number of his subordinates are involved in the teams subsequently set up to investigate, which vitiates the resultant charge-sheet.
It is next submitted that none of the witnesses who have seen the various video-clips of rioting that were captured as the violence was on have identified the applicants. The applicants are students, who ought to be shown some leniency instead of being involved in a case of mob violence, giving rise to heinous offences that would be charged in consequence.
It is argued by Shashi Shekhar Tiwari, A.G.A that the prosecution case that has been reported in the F.I.R carries a very natural description of the offence, where, initially, 900-1000 people are said to be part of the unlawful assembly, who perpetrated all this violence and later on, they have been reported to have thinned down to a figure of 600-700. After a thorough inquiry, out of this multitude, 85 named accused have been reported in the FIR that was lodged on the day following the incident, with 600 unnamed offenders.
Upon hearing Counsel for the applicant and A.G.A for the State, the Court opined that the case relates to widespread incidents of violation of public order in the name of protest against a particular or more than one Bills introduced in Parliament. What the Constitution guarantees to every citizen is the right to protest peaceably and without arms. There is no sanction to unlawful assemblies that indulge in rioting and violence as a means to vindicate their rights, or to convey their point of view. It is not that democracy and sovereignty are at crossroads. It is only that democratic rights have to be exercised in a lawful manner, so that order in society, which sovereignty has to uphold at all costs, is not lost.
Here, what appears from the materials collected in the case diary is that there was rampant rioting, where there was assault on public officials, both uniformed and of the civil administration, besides members of the public. There was also destruction of the property, both of the government and the public. The episode in which all that happened was not a momentary one. It continued over a stretch of about four hours, during which, efforts were made at different points of time to restore order and peace, if the FIR version were to be accepted. To persuade the rioters to change course, enough opportunity for a locus poenitentiae was given. The rioters persisted in their violent course and did not relent, until much damage had been done to public property and injury inflicted to different sections of the society.
“The Court does not mean to say that the charge against the applicants are true. There are materials in the case diary, which indicate that these could be true. All this is a subject matter to be tested at the trial. The kind of material that there is in the case diary is not such which this Court, in exercise of jurisdiction under Section 482 of the Code, can test.
In the circumstances, the Court does not find the case to be one where we ought to exercise our jurisdiction under Section 482 of the Code to quash proceedings and nip this prosecution in the bud”, the Court observed while rejecting the application.