Skip to main content
Sabrang

Rule of Law

Sabrang

No gathering can be permitted at Nizamuddin Markaz: Centre tells Delhi HC

The Centre had earlier stated that the mosque can be opened up as per the DDMA guidelines

14 Apr 2021

nizamuddin markaz

The Centre has told the Delhi High Court that no gathering can be permitted at Nizamuddin Markaz mosque as the same has been prohibited by Delhi Disaster Management Authority (DDMA). This submission comes a day after the Centre told the court that the mosque can be made operational based on DDMA guidelines. The Centre submitted that till the next date of hearing, the five persons who have been holding prayers at the mosque since last year will continue to be permitted to do so, reported Indian Express.

The bench of Justice Mukta Gupta has been hearing a petition filed by Delhi Waqf board for easing restrictions at Nizamuddin markaz mosque which has been locked up since a case was registered in connection with the Tablighi Jamaat congregation of 2020. The court has asked authorities to file a response to the plan submitted by Delhi Waqf Board for holding prayers during the month.

IE reported that in response to Solicitor General of India Tushar Mehta’s statement that all religious gatherings have been banned, senior advocate Ramesh Gupta, representing the Waqf Board, submitted before the court that he can submit photographs of Karol Bagh Hanuman Mandir to show a long queue and absence of social distancing. Gupta also referred to the gathering taking place at Haridwar and asked whether the rules of the central government are not applicable there and whether they are only for Muslims.

Justice Gupta responded that is the reason why the court has directed an affidavit be filed so that if all religious gatherings in temples, churches and mosques are not closed then the markaz can also be opened. SG Mehta stated that he does not have the luxury of making political statements and cannot compare what is happening in Kumbh as here the decision has been made by DDMA and nobody can question that.

During the April 12 hearing, the counsel appearing for the Centre had submitted that the Nizamuddin markaz mosque can be made operational for the devotees to offer prayers, subject to the guidelines issued by the DDMA in order to maintain social distancing. It was agreed that a joint inspection will be carried out by the SHO, PS Hazrat Nizamuddin and the office bearers of the mosque in the presence of a member of the Waqf Board and its counsel to measure the area of the mosque where the devotees can offer Namaz five times in the day. The petitioner had agreed to install CCTV cameras in the premises to ensure safety and security of the premises.

On Monday, the court had rejected a submission made by Centre and Delhi that only 20 persons be allowed to enter the mosque during Ramzan out of a police-verified list of 200 people stating that anyone could wish to visit a temple, mosque or church. Justice Gupta orally remarked, “It is an open place. They don’t have to have a fixed (number of devotees) when no other religious place has (such restrictions),” reported LiveLaw.

The April 12 order can be read here:

 

Related:

Don’t compare Kumbh Mela to Markaz event: Uttarakhand CM Tirath Singh Rawat

Tablighi Jamaat: Jharkhand court dismisses 10 Indonesians

Clean chit to Tablighi Jamaat, too little, too late?

No gathering can be permitted at Nizamuddin Markaz: Centre tells Delhi HC

The Centre had earlier stated that the mosque can be opened up as per the DDMA guidelines

nizamuddin markaz

The Centre has told the Delhi High Court that no gathering can be permitted at Nizamuddin Markaz mosque as the same has been prohibited by Delhi Disaster Management Authority (DDMA). This submission comes a day after the Centre told the court that the mosque can be made operational based on DDMA guidelines. The Centre submitted that till the next date of hearing, the five persons who have been holding prayers at the mosque since last year will continue to be permitted to do so, reported Indian Express.

The bench of Justice Mukta Gupta has been hearing a petition filed by Delhi Waqf board for easing restrictions at Nizamuddin markaz mosque which has been locked up since a case was registered in connection with the Tablighi Jamaat congregation of 2020. The court has asked authorities to file a response to the plan submitted by Delhi Waqf Board for holding prayers during the month.

IE reported that in response to Solicitor General of India Tushar Mehta’s statement that all religious gatherings have been banned, senior advocate Ramesh Gupta, representing the Waqf Board, submitted before the court that he can submit photographs of Karol Bagh Hanuman Mandir to show a long queue and absence of social distancing. Gupta also referred to the gathering taking place at Haridwar and asked whether the rules of the central government are not applicable there and whether they are only for Muslims.

Justice Gupta responded that is the reason why the court has directed an affidavit be filed so that if all religious gatherings in temples, churches and mosques are not closed then the markaz can also be opened. SG Mehta stated that he does not have the luxury of making political statements and cannot compare what is happening in Kumbh as here the decision has been made by DDMA and nobody can question that.

During the April 12 hearing, the counsel appearing for the Centre had submitted that the Nizamuddin markaz mosque can be made operational for the devotees to offer prayers, subject to the guidelines issued by the DDMA in order to maintain social distancing. It was agreed that a joint inspection will be carried out by the SHO, PS Hazrat Nizamuddin and the office bearers of the mosque in the presence of a member of the Waqf Board and its counsel to measure the area of the mosque where the devotees can offer Namaz five times in the day. The petitioner had agreed to install CCTV cameras in the premises to ensure safety and security of the premises.

On Monday, the court had rejected a submission made by Centre and Delhi that only 20 persons be allowed to enter the mosque during Ramzan out of a police-verified list of 200 people stating that anyone could wish to visit a temple, mosque or church. Justice Gupta orally remarked, “It is an open place. They don’t have to have a fixed (number of devotees) when no other religious place has (such restrictions),” reported LiveLaw.

The April 12 order can be read here:

 

Related:

Don’t compare Kumbh Mela to Markaz event: Uttarakhand CM Tirath Singh Rawat

Tablighi Jamaat: Jharkhand court dismisses 10 Indonesians

Clean chit to Tablighi Jamaat, too little, too late?

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

CJP helps Assam woman declared foreigner get bail from Guwahati HC

The Darrang based woman was declared foreigner in an ex parte judgment by the FT

14 Apr 2021

Gauhati HC

CJP has helped a hapless Assam woman declared foreigner secure bail from the Guwahati High Court. The woman named Chenbhanu Begum had been declared foreigner in an ex parte judgment by an Assam Foreigners’ Tribunal in 2019.

Chenbhanu Begum, wife of Madan Ali, is a daily wage labourer and a resident of Fuhuratali village that falls under the jurisdiction of the Sipajhar Police Station in Darrang district of Assam. FT number 4, Darrang, Mangaldai, Assam declared her foreigner via an order dated September 30, 2019, in an ex parte judgement in case No. 275/SPR/2017. However, she has not been arrested so far.

The high court granted her bail and protection from arrest saying, “In that view of the matter, in the meantime, the petitioner, if not already arrested, may not be arrested and deported from India. However, the petitioner shall appear before the Superintendent of Police (Border), Darrang within 15(fifteen) days from today, who may obtain necessary information and documentation as required under the rules from the petitioner for securing her presence. On such appearance, the petitioner shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority in the connection with F.T.4th Case No.275/SPR/2017, whereafter, the petitioner shall be allowed to remain on bail.”

The Border Police have also been directed to record her fingerprints and biometrics, if so advised and the petitioner has been ordered not to leave the jurisdiction of Darrang district without prior intimation to the police.

Court has issued notice to all respondents. It is returnable in four weeks.

The entire order may be read here:

 

Related:

EXCLUSIVE: Foreigners’ Tribunal notices pasted on electricity poles in Assam!

CJP helping a daughter secure her mother’s release from Assam detention camp

CJP Impact: 34th person walks out of Assam Detention Camp

 

CJP helps Assam woman declared foreigner get bail from Guwahati HC

The Darrang based woman was declared foreigner in an ex parte judgment by the FT

Gauhati HC

CJP has helped a hapless Assam woman declared foreigner secure bail from the Guwahati High Court. The woman named Chenbhanu Begum had been declared foreigner in an ex parte judgment by an Assam Foreigners’ Tribunal in 2019.

Chenbhanu Begum, wife of Madan Ali, is a daily wage labourer and a resident of Fuhuratali village that falls under the jurisdiction of the Sipajhar Police Station in Darrang district of Assam. FT number 4, Darrang, Mangaldai, Assam declared her foreigner via an order dated September 30, 2019, in an ex parte judgement in case No. 275/SPR/2017. However, she has not been arrested so far.

The high court granted her bail and protection from arrest saying, “In that view of the matter, in the meantime, the petitioner, if not already arrested, may not be arrested and deported from India. However, the petitioner shall appear before the Superintendent of Police (Border), Darrang within 15(fifteen) days from today, who may obtain necessary information and documentation as required under the rules from the petitioner for securing her presence. On such appearance, the petitioner shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority in the connection with F.T.4th Case No.275/SPR/2017, whereafter, the petitioner shall be allowed to remain on bail.”

The Border Police have also been directed to record her fingerprints and biometrics, if so advised and the petitioner has been ordered not to leave the jurisdiction of Darrang district without prior intimation to the police.

Court has issued notice to all respondents. It is returnable in four weeks.

The entire order may be read here:

 

Related:

EXCLUSIVE: Foreigners’ Tribunal notices pasted on electricity poles in Assam!

CJP helping a daughter secure her mother’s release from Assam detention camp

CJP Impact: 34th person walks out of Assam Detention Camp

 

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

SC seeks data on migrant children from all states

In a plea filed for enforcing rights of migrant children, the court has sought data on the benefits being provided to them

14 Apr 2021

migrant workers

The Supreme Court has directed all states to provide data on the number of migrant children, children of migrant workers and the benefits extended to them. A bench of CJI SA Bobde and Justices AS Bopanna and V Ramasubramanian gave this direction while hearing a plea filed by Child Rights Trust for protection of the fundamental rights of migrant children and children of migrant families.

Senior Advocate Jayna Kothari had requested the bench to not just direct the state to file a response but to also provide the number of migrant children and the benefits given to them. The bench accordingly issued directions. On March 8, the court had issued notice on the plea and had impleaded all the states.

The plea filed by Advocate Rukhsana Choudhary brings to fore five areas of concern with regard to migrant children, i.e. hazardous living conditions, food security, health needs, education and protection. Kothari, at the last hearing, had requested the bench to issue directions on certain prayers in the plea concerned with giving data on out-of-school migrant children, and a plan to provide them temporary education, till schools reopen. She pointed that while schools were slowly re-opening, many children of migrant labourers have already been pushed into child labour.

The prayers for which directions were sought include:

  • Directions to provide data on the out-of-school migrant children from all the states, and to provide an action plan on providing a temporary education plan for migrant children and an action plan on how migrant children will be brought back to schools when schools start.

  • Directions to involve the VCPCs Women and Child Protection Committees and Urban Child Protection in tandem with the school authorities and District Child Protection Units to prevent children entering the labour market (animal husbandry, agriculture)

  • Directions to submit an action plan on the prevention of child marriages during this period

The petition categorises migrant children into three categories:

1.       Children of migrant workers who are left behind in their villages

2.       Children who are taken by the migrant families with them and

3.       Migrant children who migrate for labour of their own.

The petition states that these children are amongst the worst affected and they remain invisible while being denied access to healthcare and proper nutrition, access to education, and are living in makeshift, unfriendly, unhygienic and testing conditions.

Related:

97 migrant workers died on Shramik trains during Covid-19: Centre in LS

SC allows States to be impleaded in plea seeking protection of rights of migrant children

SC seeks data on migrant children from all states

In a plea filed for enforcing rights of migrant children, the court has sought data on the benefits being provided to them

migrant workers

The Supreme Court has directed all states to provide data on the number of migrant children, children of migrant workers and the benefits extended to them. A bench of CJI SA Bobde and Justices AS Bopanna and V Ramasubramanian gave this direction while hearing a plea filed by Child Rights Trust for protection of the fundamental rights of migrant children and children of migrant families.

Senior Advocate Jayna Kothari had requested the bench to not just direct the state to file a response but to also provide the number of migrant children and the benefits given to them. The bench accordingly issued directions. On March 8, the court had issued notice on the plea and had impleaded all the states.

The plea filed by Advocate Rukhsana Choudhary brings to fore five areas of concern with regard to migrant children, i.e. hazardous living conditions, food security, health needs, education and protection. Kothari, at the last hearing, had requested the bench to issue directions on certain prayers in the plea concerned with giving data on out-of-school migrant children, and a plan to provide them temporary education, till schools reopen. She pointed that while schools were slowly re-opening, many children of migrant labourers have already been pushed into child labour.

The prayers for which directions were sought include:

  • Directions to provide data on the out-of-school migrant children from all the states, and to provide an action plan on providing a temporary education plan for migrant children and an action plan on how migrant children will be brought back to schools when schools start.

  • Directions to involve the VCPCs Women and Child Protection Committees and Urban Child Protection in tandem with the school authorities and District Child Protection Units to prevent children entering the labour market (animal husbandry, agriculture)

  • Directions to submit an action plan on the prevention of child marriages during this period

The petition categorises migrant children into three categories:

1.       Children of migrant workers who are left behind in their villages

2.       Children who are taken by the migrant families with them and

3.       Migrant children who migrate for labour of their own.

The petition states that these children are amongst the worst affected and they remain invisible while being denied access to healthcare and proper nutrition, access to education, and are living in makeshift, unfriendly, unhygienic and testing conditions.

Related:

97 migrant workers died on Shramik trains during Covid-19: Centre in LS

SC allows States to be impleaded in plea seeking protection of rights of migrant children

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Gyanvapi case: Pleas before Allahabad HC challenging ASI survey order

One petition and one urgent application have been filed questioning how the lower court has been passing orders when the High Court has reserved orders in the case

14 Apr 2021

Kashi

The Uttar Pradesh Sunni Central Waqf Board has moved an urgent petition before the Allahabad High Court against the order of the trial court allowing Archaeological Survey of India (ASI) survey in the Kashi Vishwanath Mandir-Gyanvapi Masjid case. The order was passed by the Varanasi Court in connection with a plea filed by local lawyer VS Rastogi, who demanded that the land upon which the mosque was constructed be returned to Hindus

The Waqf Board’s counsel Puneet Kumar Gupta argued that the trial court passed the order illegally and without its jurisdiction as the matter is in the High Court and Justice Prakash Pandia reserved its order on March 15, reported the Indian Express.

Another application has been moved by Anjuman Intezamia Masjid Varanasi contending that the Civil Judge acted in the "most arbitrary manner" while passing the order to allow the ASI for undertaking a survey at the disputed site and has acted against the spirit of judicial discipline, reported LiveLaw. The application states that by passing orders despite the High Court reserving judgment in the case, the lower court acted "against the spirit of complete justice as well as the challenge to the entire suit proceeding and its authenticity."

Brief background

For decades, the land dispute between the Kashi Vishwanath temple and the Gyanvapi mosque has been fodder for controversy and hate mongering by right wing supremacist groups, not very unlike the Ayodhya dispute.

It is alleged that Mughal emperor Aurangzeb had razed the temple in 1664 and the mosque was built on its ruins using the temple’s debris. Hostilities simmered over time and the dispute went to court when the title suit was filed in 1991. The two parties in this case were Kashi Vishwanath Mandir Trust (KVMT) and the Anjuman Intazamia Masjid (AIM). But back then, the Allahabad High Court had imposed a temporary stay on hearings in the case via an order dated October 13, 1998.

However, on February 4, 2020, a local court decided to commence hearings in the case stating that the HC’s order had not been extended within six months with a separate order, and that therefore the stay was deemed to have been vacated. In March 2020, the Allahabad High Court had stayed the Varanasi court’s order to commence hearing and ordered that the stay be maintained.

Related:

Not surprised about ASI being asked to survey Gyanvapi complex: SM Yaseen

Years after Ramjanmabhoomi, ASI to survey Gyanvapi-Kashi Vishwanath complex

Gyan Vapi case: New petition admitted, notice issued

Gyanvapi case: Pleas before Allahabad HC challenging ASI survey order

One petition and one urgent application have been filed questioning how the lower court has been passing orders when the High Court has reserved orders in the case

Kashi

The Uttar Pradesh Sunni Central Waqf Board has moved an urgent petition before the Allahabad High Court against the order of the trial court allowing Archaeological Survey of India (ASI) survey in the Kashi Vishwanath Mandir-Gyanvapi Masjid case. The order was passed by the Varanasi Court in connection with a plea filed by local lawyer VS Rastogi, who demanded that the land upon which the mosque was constructed be returned to Hindus

The Waqf Board’s counsel Puneet Kumar Gupta argued that the trial court passed the order illegally and without its jurisdiction as the matter is in the High Court and Justice Prakash Pandia reserved its order on March 15, reported the Indian Express.

Another application has been moved by Anjuman Intezamia Masjid Varanasi contending that the Civil Judge acted in the "most arbitrary manner" while passing the order to allow the ASI for undertaking a survey at the disputed site and has acted against the spirit of judicial discipline, reported LiveLaw. The application states that by passing orders despite the High Court reserving judgment in the case, the lower court acted "against the spirit of complete justice as well as the challenge to the entire suit proceeding and its authenticity."

Brief background

For decades, the land dispute between the Kashi Vishwanath temple and the Gyanvapi mosque has been fodder for controversy and hate mongering by right wing supremacist groups, not very unlike the Ayodhya dispute.

It is alleged that Mughal emperor Aurangzeb had razed the temple in 1664 and the mosque was built on its ruins using the temple’s debris. Hostilities simmered over time and the dispute went to court when the title suit was filed in 1991. The two parties in this case were Kashi Vishwanath Mandir Trust (KVMT) and the Anjuman Intazamia Masjid (AIM). But back then, the Allahabad High Court had imposed a temporary stay on hearings in the case via an order dated October 13, 1998.

However, on February 4, 2020, a local court decided to commence hearings in the case stating that the HC’s order had not been extended within six months with a separate order, and that therefore the stay was deemed to have been vacated. In March 2020, the Allahabad High Court had stayed the Varanasi court’s order to commence hearing and ordered that the stay be maintained.

Related:

Not surprised about ASI being asked to survey Gyanvapi complex: SM Yaseen

Years after Ramjanmabhoomi, ASI to survey Gyanvapi-Kashi Vishwanath complex

Gyan Vapi case: New petition admitted, notice issued

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Assam man declared foreigner gets bail from Guwahati HC with CJP's help

The man was forced to defend his citizenship before an FT twice; the first time he was declared Indian, but the second time he was declared foreigner

13 Apr 2021

CJP has come to the aid of Uttam Chakraborty, a Bengali Hindu man who was forced to defend his citizenship before a Foreigners’ Tribunal twice! While he was declared Indian the first time, he was shockingly found to be a ‘foreigner’ a second time. But CJP provided him legal aid and helped him secure bail from the Guwahati High Court that also granted him protection from arrest.

Advocate Mrinmoy Dutta from the CJP legal Team appeared for Chakraborty in the Guwahati High Court. Uttam Chakraborty is a resident of Tulsibari Viilage (No. 1) that falls under the jurisdiction of Rangia Police Station in Kamrup district of Assam.

A reference was first made against him (P.S Case No. 208/2014) that led to RFT Case No. 47/2015. At that time FT No.5 Kamrup (Rural), Rangia, Assam had declared him Indian. But then another reference was made against him (Case No. 275/SPR/2017) where the FT declared him foreigner!

CJP swung into action and helped Chakraborty appeal against the FT judgment in the Guwahati High Court.

The court in its order dated April 9, 2021 said, “In that view of the matter, in the meantime, the petitioner, if not already arrested, may not be arrested and deported from India. However, the petitioner shall appear before the Superintendent of Police (Border), Kamrup(R) within 15(fifteen) days from today, who may obtain necessary information and documentation as required under the rules from the petitioner for securing his presence. On such appearance, the petitioner shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority in the connection with F.T.4th Case No.275/SPR/2017, whereafter, the petitioner shall be allowed to remain on bail.”

The petitioner’s fingerprints and biometrics shall be recorded by the police and he is not allowed to leave the jurisdiction of Kamrup (R) without providing necessary information to the police.

The court has also issued notice to the respondents in the case, namely:

The Union of India

The State of Assam

The Superintendent of Police (B), Kamrup

The Superintendent of Police, Kamrup

The State Coordinator National Registrar of Citizens Assam, Bhangagarh

The State Chief Election Commissioner, Assam

The notice is returnable in four weeks.

The entire order may be viewed here:

Related:

CJP Impact: 34th person walks out of Assam Detention Camp

Overcoming trauma together: CJP in Assam

Empowering Assam in 2020

Assam man declared foreigner gets bail from Guwahati HC with CJP's help

The man was forced to defend his citizenship before an FT twice; the first time he was declared Indian, but the second time he was declared foreigner

CJP has come to the aid of Uttam Chakraborty, a Bengali Hindu man who was forced to defend his citizenship before a Foreigners’ Tribunal twice! While he was declared Indian the first time, he was shockingly found to be a ‘foreigner’ a second time. But CJP provided him legal aid and helped him secure bail from the Guwahati High Court that also granted him protection from arrest.

Advocate Mrinmoy Dutta from the CJP legal Team appeared for Chakraborty in the Guwahati High Court. Uttam Chakraborty is a resident of Tulsibari Viilage (No. 1) that falls under the jurisdiction of Rangia Police Station in Kamrup district of Assam.

A reference was first made against him (P.S Case No. 208/2014) that led to RFT Case No. 47/2015. At that time FT No.5 Kamrup (Rural), Rangia, Assam had declared him Indian. But then another reference was made against him (Case No. 275/SPR/2017) where the FT declared him foreigner!

CJP swung into action and helped Chakraborty appeal against the FT judgment in the Guwahati High Court.

The court in its order dated April 9, 2021 said, “In that view of the matter, in the meantime, the petitioner, if not already arrested, may not be arrested and deported from India. However, the petitioner shall appear before the Superintendent of Police (Border), Kamrup(R) within 15(fifteen) days from today, who may obtain necessary information and documentation as required under the rules from the petitioner for securing his presence. On such appearance, the petitioner shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority in the connection with F.T.4th Case No.275/SPR/2017, whereafter, the petitioner shall be allowed to remain on bail.”

The petitioner’s fingerprints and biometrics shall be recorded by the police and he is not allowed to leave the jurisdiction of Kamrup (R) without providing necessary information to the police.

The court has also issued notice to the respondents in the case, namely:

The Union of India

The State of Assam

The Superintendent of Police (B), Kamrup

The Superintendent of Police, Kamrup

The State Coordinator National Registrar of Citizens Assam, Bhangagarh

The State Chief Election Commissioner, Assam

The notice is returnable in four weeks.

The entire order may be viewed here:

Related:

CJP Impact: 34th person walks out of Assam Detention Camp

Overcoming trauma together: CJP in Assam

Empowering Assam in 2020

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Gauhati HC overturns FT order, declares man to be Indian citizen

The court observed that failure to disclose the names of all the members of the family cannot weaken his case and render his evidence unreliable

13 Apr 2021

Foreigners Tribunal Barpeta

The Gauhati High Court has set aside an order passed by Foreigners Tribunal Barpeta, declaring a person as a foreigner, while observing the many flaws in the Tribunal’s order. The Division Bench of Justices N Kotiswar Singh and Manish Choudhury were of the firm opinion that the petitioner was able to show linkage between himself, his father and his grandfather and thus declared him to be an Indian citizen. The bench declared him a citizen, instead of remanding the matter back to the Tribunal as that would merely delay the proceedings as also on account of the overwhelming evidence in favour of the petitioner.

The petitioner Haidar Ali challenged the order passed by Foreigners Tribunal Barpeta, passed in January 2019, which declared him a foreigner under section 2(a) of the Foreigners Act, 1946.

Background

The Tribunal had taken up the matter on a reference being made by the Superintendent of Police (B), Barpeta against Ali. He had contended before the Tribunal that the investigating authority did not make any field visit during the investigation and never asked the petitioner to produce any documents and as such, the proceeding was liable to be dismissed on that ground.

He also made submissions on merit stating that his grandparents’ names appeared in the voters lists of 1965 & 1970 of village- Nalirpam and that his parents' names appeared in the voters lists of 1989 & 1997 of village Karagari Nonke since they had moved from Nalirpam. Further, his name appeared along with his parents names in voters lists of 2010 and 2018. He also produced a certified copy of Jamabandi of 2008 for the property inherited by his father and his brothers and few other documents including voter ID cards, school leaving certificate, birth certificate and voters lists.

As witnesses, Ali’s father was examined, along with the Principal of his school as well as the Gaonburah of Barsimla village in support of the certificate issued by him. There was no objection to the admissibility of any of these documents, and the State also did not lead any evidence to rebut this evidence adduced by the petitioner. Yet, the Tribunal declared him a foreigner stating that he failed to discharge his burden of proving that he is an Indian. The Tribunal stated that in the voters’ list 7 person’s names appear but the petitioner failed to mention his link with them. The petitioner had failed to mention the link of the petitioner with the other persons mentioned in the voters list of 1970 and also with his father and grandparents Nadu Miya and Aymona in his written statement. Accordingly, the Tribunal held that the petitioner could not establish the linkage in a proper manner.

Linkage with relatives

The court observed that in the non-explanation of the linkage of the petitioner with others whose names were shown along with his grandparents in the voters list of 1970 does not affect the credibility or genuineness of the evidence in the form of voters list of 1970, to show the linkage of the petitioner with his grandparents. The court stated that what was required to be considered by the Tribunal was whether Harmuz Ali was the father of the petitioner and Haowa Khatun, his mother, and in turn, whether Nadu Miya and Aymona Nessa were parents of Harmuz Ali, who undisputedly were all Indian citizens. Basically, the Tribunal had to be concerned with whether there is evidence to show that the petitioner is the child of his parents and to prove how his paternal grandparents are related to his father.

The court examined the materials and concluded that voters list of 1965 shows that the names of Nadu Mia and Aymona Nessa are included who the petitioner claims to be his grandparents, thereby showing that they were Indian citizens.

Even though the court would not normally entertain fresh documents, yet it compared a copy of 1971 voters list in which the names of the petitioner’s father, Harmuz Ali is shown along with his father Nadu with 1970 voters list, for its own satisfaction. The court thus concluded that petitioner’s father, Harmuz Ali is the son of Nadu Mia as clearly established by voters lists of 1970, 1971 and 1965.

“Non explanation of relationship of the petitioner with other persons mentioned in the voters list of 1970 cannot be a ground for disbelieving the correctness of the entry of the names of the grandparents in the voters list, when the correctness of the entry of the names of the petitioner’s father and grandfather was not questioned,” the court held.

“As such, the fact in issue was not whether the petitioner had other relatives also. Thus, non-mentioning of his other relatives as well as that of his father cannot be a ground for disbelieving his testimony and the documents relied upon by the petitioner. Of course, if the petitioner had disclosed in more detail the family tree, it would rather strengthen his claim, but failure to disclose the names of all the members of the family cannot weaken his case and render his evidence unreliable, nor reduce the credibility of his evidence, when there are other corroborating evidences,” the court observed.

Written statement before FT is different

Since the Tribunal had pointed out discrepancies in the written statement and examination in chief, the court sought to clarify what a written statement meant when it is before a Foreigners Tribunal.

“While “written statement” as understood under the CPC is a defence put up by the defendant with reference to and in response to the specific averments and allegations made in the plaint in response to the plaint, in the case of a proceeding before the Tribunal, no such plaint or the charge is filed except for informing the proceedee through a mere notice or summon issued by the Tribunal issued by making an allegation that the proceedee is not an Indian but a foreigner who came to India on a certain specific period of time,” the court clarified.

The court stated that the Tribunal does not examine any of the persons who had made the reference or who had conducted the investigation thus, the proceedee is totally in dark as to how he came to be considered to be a foreigner. Further, before the Tribunal, the onus is on the procedee to prove he is not a foreigner and apart from the notice, no other document is furnished to him. As such, the Tribunal merely provides a reasonable opportunity for making a representation and producing evidence in support of his case and hence, rules of “written statement” as provided under Civil Procedure Code (CPC) are not applicable.

“All opportunities should be given to a proceedee to enable him to produce all such documents which come to his possession even at a later stage also, to substantiate his claim that he is an Indian. No pedantic view should be taken, if there has been some delay or if the same is not mentioned in the written statement,” the court observed.

The court stated thus, if the proceedee is able to make out a case for filing a document at a later stage, the same cannot be denied and no adverse inference can be drawn.

The court also addressed that during cross examination, Ali’s father disclosed names of his siblings but this disclosure which was not made in written statement should not shake the credibility of the evidence, merely because it was disclosed at later stage. It rather fortifies his evidence and shows his truthfulness, the court stated.

“The observation by the Tribunal that the proceedee ought to have disclosed all material facts in the written statement which were within his special knowledge and if the same is not disclosed, an adverse inference can be drawn against him, does not appear to be sound either in logic or in law,” the court observed.

Proceedings before FT explained

The proceedings before the Tribunal and how the evidence produced by the procedee should be considered is well explained by the court:

In the proceeding before the Foreigners Tribunal, no “fact” nor any “charge” is required to be proved beyond reasonable doubt by the State. The State merely makes an allegation based on certain investigation that the proceedee is a foreigner. The practice followed so far, as can be seen from the records, is that nothing is furnished to the proceedee by the State or the Tribunal, except for the summons/notice stating that the proceedee is a foreigner who entered Assam, India during a particular period of time. In fact, the onus of proving that the proceedee is not a foreigner is placed on him in terms of Section 9 of the Foreigners Act, 1946. Further, the Tribunal does not direct the proceedee to produce any document. It is for the proceedee to produce such evidences and documents in support of his claim that he is an Indian. The more credible evidences he produces, the better for him. Yet, production of less evidences cannot necessarily lead to rejection of the claim of the proceedee nor drawing of any adverse inference.

The court asserted that since the burden of proof is on the proceedee and there is no burden on the state except to the extent that a proper investigation has been conducted before making the reference, the proceedee must be afforded all the opportunities to put forth his evidence, without taking a hyper technical view.

Sarbananda Sonowal v. UOI

 The court also examined Sarbananda Sonowal v. UOI (2005) 5 SCC 665  and observed as follows:

(i) In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. However, the Supreme Court nowhere states that the aforesaid facts must be proved only by documents.

(ii) Further, disclosure of facts or information other than the ones mentioned in para 26 (of the Sonowal judgment) does not mean that adverse inference can be drawn.

(iii) if the date of birth or the place of birth is not conclusively proved, but if it is conclusively proved that the father of the proceedee is an Indian citizen, the claim of the proceedee cannot be rejected as a foreigner, as it would fly in the face of logic and common sense

(iv) There may be cases, where the proceedee is an illiterate, and the birth is not registered with any authority, in which event, it would be impossible to produce any documentary evidence to prove his date of birth and place and other facts accurately and one may rely on oral evidence only. In such case, can a claim be thrown out merely because only oral evidence has been led?

(v) Further, after he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary.

The court further observed that since the standard of proof in discharge of the onus by a proceedee while proving citizenship is preponderance of probability there could be minor inconsistencies here and there in the evidence of the proceedee which would not warrant rejection of the claim.

“It is to be remembered that the standard of proof in a proceeding under the Tribunal is preponderance of probability and not proof beyond all reasonable doubt. If the petitioner has been able to prove that the names of the petitioner’s father and grandfather were shown in 1966 and 1971 and if the petitioner is able to show his linkage with them on the strength of voters lists after 1971, the Tribunal cannot reject the claim of the petitioner, merely because some documentary evidence were not produced,” the court observed.

Tribunal’s rejection of claims

The court expressed its surprise that the Tribunal had concluded that the petitioner could not establish linkage with his father even as both of them had testified about their relationship supported and corroborated by other documentary evidence, which have not been challenged.

Further, the Tribunal had deemed the evidence of the Principal of the school which issued the school leaving certificate to be unreliable stating that a foreigner may study at any place and may also be born in this country. The court deemed this to be a conjecture not substantiated by any evidence and contrary to the evidence duly provided.

The court concluded that Ali was able to show his linkage with his father Harmuz Ali and grandfather, Nadu Miya and stated that “we have no hesitation to hold that the petitioner is an Indian citizen and not a foreigner”. The court allowed the petition and set aside the Tribunal’s order of January 30, 2019.

The complete judgment may be read here:

 

Related:

NRC officials awaiting SC order before issuing rejection slips

Gauhati HC restores Indian citizenship of a woman declared a foreigner in 2017

Deadline to challenge ex-parte FT decision valid only when notice is served: SC

 

Gauhati HC overturns FT order, declares man to be Indian citizen

The court observed that failure to disclose the names of all the members of the family cannot weaken his case and render his evidence unreliable

Foreigners Tribunal Barpeta

The Gauhati High Court has set aside an order passed by Foreigners Tribunal Barpeta, declaring a person as a foreigner, while observing the many flaws in the Tribunal’s order. The Division Bench of Justices N Kotiswar Singh and Manish Choudhury were of the firm opinion that the petitioner was able to show linkage between himself, his father and his grandfather and thus declared him to be an Indian citizen. The bench declared him a citizen, instead of remanding the matter back to the Tribunal as that would merely delay the proceedings as also on account of the overwhelming evidence in favour of the petitioner.

The petitioner Haidar Ali challenged the order passed by Foreigners Tribunal Barpeta, passed in January 2019, which declared him a foreigner under section 2(a) of the Foreigners Act, 1946.

Background

The Tribunal had taken up the matter on a reference being made by the Superintendent of Police (B), Barpeta against Ali. He had contended before the Tribunal that the investigating authority did not make any field visit during the investigation and never asked the petitioner to produce any documents and as such, the proceeding was liable to be dismissed on that ground.

He also made submissions on merit stating that his grandparents’ names appeared in the voters lists of 1965 & 1970 of village- Nalirpam and that his parents' names appeared in the voters lists of 1989 & 1997 of village Karagari Nonke since they had moved from Nalirpam. Further, his name appeared along with his parents names in voters lists of 2010 and 2018. He also produced a certified copy of Jamabandi of 2008 for the property inherited by his father and his brothers and few other documents including voter ID cards, school leaving certificate, birth certificate and voters lists.

As witnesses, Ali’s father was examined, along with the Principal of his school as well as the Gaonburah of Barsimla village in support of the certificate issued by him. There was no objection to the admissibility of any of these documents, and the State also did not lead any evidence to rebut this evidence adduced by the petitioner. Yet, the Tribunal declared him a foreigner stating that he failed to discharge his burden of proving that he is an Indian. The Tribunal stated that in the voters’ list 7 person’s names appear but the petitioner failed to mention his link with them. The petitioner had failed to mention the link of the petitioner with the other persons mentioned in the voters list of 1970 and also with his father and grandparents Nadu Miya and Aymona in his written statement. Accordingly, the Tribunal held that the petitioner could not establish the linkage in a proper manner.

Linkage with relatives

The court observed that in the non-explanation of the linkage of the petitioner with others whose names were shown along with his grandparents in the voters list of 1970 does not affect the credibility or genuineness of the evidence in the form of voters list of 1970, to show the linkage of the petitioner with his grandparents. The court stated that what was required to be considered by the Tribunal was whether Harmuz Ali was the father of the petitioner and Haowa Khatun, his mother, and in turn, whether Nadu Miya and Aymona Nessa were parents of Harmuz Ali, who undisputedly were all Indian citizens. Basically, the Tribunal had to be concerned with whether there is evidence to show that the petitioner is the child of his parents and to prove how his paternal grandparents are related to his father.

The court examined the materials and concluded that voters list of 1965 shows that the names of Nadu Mia and Aymona Nessa are included who the petitioner claims to be his grandparents, thereby showing that they were Indian citizens.

Even though the court would not normally entertain fresh documents, yet it compared a copy of 1971 voters list in which the names of the petitioner’s father, Harmuz Ali is shown along with his father Nadu with 1970 voters list, for its own satisfaction. The court thus concluded that petitioner’s father, Harmuz Ali is the son of Nadu Mia as clearly established by voters lists of 1970, 1971 and 1965.

“Non explanation of relationship of the petitioner with other persons mentioned in the voters list of 1970 cannot be a ground for disbelieving the correctness of the entry of the names of the grandparents in the voters list, when the correctness of the entry of the names of the petitioner’s father and grandfather was not questioned,” the court held.

“As such, the fact in issue was not whether the petitioner had other relatives also. Thus, non-mentioning of his other relatives as well as that of his father cannot be a ground for disbelieving his testimony and the documents relied upon by the petitioner. Of course, if the petitioner had disclosed in more detail the family tree, it would rather strengthen his claim, but failure to disclose the names of all the members of the family cannot weaken his case and render his evidence unreliable, nor reduce the credibility of his evidence, when there are other corroborating evidences,” the court observed.

Written statement before FT is different

Since the Tribunal had pointed out discrepancies in the written statement and examination in chief, the court sought to clarify what a written statement meant when it is before a Foreigners Tribunal.

“While “written statement” as understood under the CPC is a defence put up by the defendant with reference to and in response to the specific averments and allegations made in the plaint in response to the plaint, in the case of a proceeding before the Tribunal, no such plaint or the charge is filed except for informing the proceedee through a mere notice or summon issued by the Tribunal issued by making an allegation that the proceedee is not an Indian but a foreigner who came to India on a certain specific period of time,” the court clarified.

The court stated that the Tribunal does not examine any of the persons who had made the reference or who had conducted the investigation thus, the proceedee is totally in dark as to how he came to be considered to be a foreigner. Further, before the Tribunal, the onus is on the procedee to prove he is not a foreigner and apart from the notice, no other document is furnished to him. As such, the Tribunal merely provides a reasonable opportunity for making a representation and producing evidence in support of his case and hence, rules of “written statement” as provided under Civil Procedure Code (CPC) are not applicable.

“All opportunities should be given to a proceedee to enable him to produce all such documents which come to his possession even at a later stage also, to substantiate his claim that he is an Indian. No pedantic view should be taken, if there has been some delay or if the same is not mentioned in the written statement,” the court observed.

The court stated thus, if the proceedee is able to make out a case for filing a document at a later stage, the same cannot be denied and no adverse inference can be drawn.

The court also addressed that during cross examination, Ali’s father disclosed names of his siblings but this disclosure which was not made in written statement should not shake the credibility of the evidence, merely because it was disclosed at later stage. It rather fortifies his evidence and shows his truthfulness, the court stated.

“The observation by the Tribunal that the proceedee ought to have disclosed all material facts in the written statement which were within his special knowledge and if the same is not disclosed, an adverse inference can be drawn against him, does not appear to be sound either in logic or in law,” the court observed.

Proceedings before FT explained

The proceedings before the Tribunal and how the evidence produced by the procedee should be considered is well explained by the court:

In the proceeding before the Foreigners Tribunal, no “fact” nor any “charge” is required to be proved beyond reasonable doubt by the State. The State merely makes an allegation based on certain investigation that the proceedee is a foreigner. The practice followed so far, as can be seen from the records, is that nothing is furnished to the proceedee by the State or the Tribunal, except for the summons/notice stating that the proceedee is a foreigner who entered Assam, India during a particular period of time. In fact, the onus of proving that the proceedee is not a foreigner is placed on him in terms of Section 9 of the Foreigners Act, 1946. Further, the Tribunal does not direct the proceedee to produce any document. It is for the proceedee to produce such evidences and documents in support of his claim that he is an Indian. The more credible evidences he produces, the better for him. Yet, production of less evidences cannot necessarily lead to rejection of the claim of the proceedee nor drawing of any adverse inference.

The court asserted that since the burden of proof is on the proceedee and there is no burden on the state except to the extent that a proper investigation has been conducted before making the reference, the proceedee must be afforded all the opportunities to put forth his evidence, without taking a hyper technical view.

Sarbananda Sonowal v. UOI

 The court also examined Sarbananda Sonowal v. UOI (2005) 5 SCC 665  and observed as follows:

(i) In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. However, the Supreme Court nowhere states that the aforesaid facts must be proved only by documents.

(ii) Further, disclosure of facts or information other than the ones mentioned in para 26 (of the Sonowal judgment) does not mean that adverse inference can be drawn.

(iii) if the date of birth or the place of birth is not conclusively proved, but if it is conclusively proved that the father of the proceedee is an Indian citizen, the claim of the proceedee cannot be rejected as a foreigner, as it would fly in the face of logic and common sense

(iv) There may be cases, where the proceedee is an illiterate, and the birth is not registered with any authority, in which event, it would be impossible to produce any documentary evidence to prove his date of birth and place and other facts accurately and one may rely on oral evidence only. In such case, can a claim be thrown out merely because only oral evidence has been led?

(v) Further, after he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary.

The court further observed that since the standard of proof in discharge of the onus by a proceedee while proving citizenship is preponderance of probability there could be minor inconsistencies here and there in the evidence of the proceedee which would not warrant rejection of the claim.

“It is to be remembered that the standard of proof in a proceeding under the Tribunal is preponderance of probability and not proof beyond all reasonable doubt. If the petitioner has been able to prove that the names of the petitioner’s father and grandfather were shown in 1966 and 1971 and if the petitioner is able to show his linkage with them on the strength of voters lists after 1971, the Tribunal cannot reject the claim of the petitioner, merely because some documentary evidence were not produced,” the court observed.

Tribunal’s rejection of claims

The court expressed its surprise that the Tribunal had concluded that the petitioner could not establish linkage with his father even as both of them had testified about their relationship supported and corroborated by other documentary evidence, which have not been challenged.

Further, the Tribunal had deemed the evidence of the Principal of the school which issued the school leaving certificate to be unreliable stating that a foreigner may study at any place and may also be born in this country. The court deemed this to be a conjecture not substantiated by any evidence and contrary to the evidence duly provided.

The court concluded that Ali was able to show his linkage with his father Harmuz Ali and grandfather, Nadu Miya and stated that “we have no hesitation to hold that the petitioner is an Indian citizen and not a foreigner”. The court allowed the petition and set aside the Tribunal’s order of January 30, 2019.

The complete judgment may be read here:

 

Related:

NRC officials awaiting SC order before issuing rejection slips

Gauhati HC restores Indian citizenship of a woman declared a foreigner in 2017

Deadline to challenge ex-parte FT decision valid only when notice is served: SC

 

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Madras HC quashes FIR against CAA protestor, upholds freedom of speech

The court observed that since no untoward incident had happened when the petitioner was protesting, the FIR be quashed

13 Apr 2021

CAA

The Madras High Court has quashed proceedings against a person booked for protesting the Citizenship Amendment Act (CAA) while asserting that the Constitution bestows fundamental rights such as freedom of speech and right to assemble peacefully.

The petitioner, Jafar Sathick, sought quashing of FIR registered against him for protesting the CAA. The FIR was registered in March 2020 on the charge that the petitioner and others by their act had not only committed public nuisance, but also caused hindrance to the free flow of vehicular traffic on the road.

The bench of Justice R Hemalatha observed that during the said protest, no untoward incident took place and the FIR also does not disclose any acts of violence. The court unequivocally emphasised that the Constitution of India gives its Citizens the right to freedom of speech and expression, assemble peacefully and without arms, to form Associations and Unions and to move freely throughout the Territory of India under Article 19 of the Constitution.

The court, thus, allowed the petition and quashed the FIR against the petitioner.

The order may be read here:


Related:

Tripura HC quashes FIR against man charged for misleading FB post about pro-CAA number

Mere presence of accused at Red Fort cannot justify incarceration: Delhi court on R-Day violence

Protect arrestee’s human rights: Lawyers send open letter to UNHRC

Madras HC quashes FIR against CAA protestor, upholds freedom of speech

The court observed that since no untoward incident had happened when the petitioner was protesting, the FIR be quashed

CAA

The Madras High Court has quashed proceedings against a person booked for protesting the Citizenship Amendment Act (CAA) while asserting that the Constitution bestows fundamental rights such as freedom of speech and right to assemble peacefully.

The petitioner, Jafar Sathick, sought quashing of FIR registered against him for protesting the CAA. The FIR was registered in March 2020 on the charge that the petitioner and others by their act had not only committed public nuisance, but also caused hindrance to the free flow of vehicular traffic on the road.

The bench of Justice R Hemalatha observed that during the said protest, no untoward incident took place and the FIR also does not disclose any acts of violence. The court unequivocally emphasised that the Constitution of India gives its Citizens the right to freedom of speech and expression, assemble peacefully and without arms, to form Associations and Unions and to move freely throughout the Territory of India under Article 19 of the Constitution.

The court, thus, allowed the petition and quashed the FIR against the petitioner.

The order may be read here:


Related:

Tripura HC quashes FIR against man charged for misleading FB post about pro-CAA number

Mere presence of accused at Red Fort cannot justify incarceration: Delhi court on R-Day violence

Protect arrestee’s human rights: Lawyers send open letter to UNHRC

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Delhi violence: HC grants bail to two murder accused, doubts eye witness allegations

The Court held that the allegations will be verified at the trial stage but the petitioners deserve bail

13 Apr 2021

Delhi HC

The Delhi High Court has granted bail to two persons charged with murder and rioting during the Delhi violence of February 2020, while casting doubt on the witness, who the petitioners claimed to be a planted witness.

The bench of Justice Suresh Kumar Kait clubbed both bail applications as they were pertiaing to the same FIR where the applicants, Pradeep Rai and Aman Kashyap have been charged for murder, rioting, unlawful assembly, theft, mischief and conspiracy. The counsel for the petitioner submitted that the eye witness in this FIR, Shashi Kant is also an eye witness in few other FIRs registered at Dayalpur police station for incidents that took place on February 25. However, these other FIRs were of incidents which took place in Gali no. 10 and the incident in the present FIR occurred in Gali no. 3, which is about 500-700 metres away. It was thus submitted that he seemed to be a planted witness.

At the previous hearing, the court had directed the State to verify how Shashi Kant had witnessed the incident which took place in Gali No. 10 and Gali No.3. The State responded stating that the distance between Gali No.10 and Gali No.3 is about 350 meters.

The court observed that the witness who is a resident of gali no. 10 might have witnessed the incident of Gali no. 10, but casted doubt on how he could see the present incident, which has taken place in Gali No.3. The court stated that the veracity of the allegations will be tested at trial but since the petitioners have been in custody since April 2020 and the trial will take substantial time, they deserve bail.

Accordingly, the court granted bail to the petitioners on furnishing personal bond in the sum of Rs.20,000 each with one surety in the like amount. The court imposed a condition that the petitioners shall not influence prosecution witnesses and stated that the trial court shall not get influenced by the observations made in this order.

The order may be read here:

 

Related:

Asif Tanha bail plea: Delhi HC seeks unredacted witness statements from trial court

Delhi violence: Court grants stay in trial of case where complainant is also accused

Delhi Court questions improper maintenance of case files in Madina Masjid probe

Delhi violence: HC grants bail to two murder accused, doubts eye witness allegations

The Court held that the allegations will be verified at the trial stage but the petitioners deserve bail

Delhi HC

The Delhi High Court has granted bail to two persons charged with murder and rioting during the Delhi violence of February 2020, while casting doubt on the witness, who the petitioners claimed to be a planted witness.

The bench of Justice Suresh Kumar Kait clubbed both bail applications as they were pertiaing to the same FIR where the applicants, Pradeep Rai and Aman Kashyap have been charged for murder, rioting, unlawful assembly, theft, mischief and conspiracy. The counsel for the petitioner submitted that the eye witness in this FIR, Shashi Kant is also an eye witness in few other FIRs registered at Dayalpur police station for incidents that took place on February 25. However, these other FIRs were of incidents which took place in Gali no. 10 and the incident in the present FIR occurred in Gali no. 3, which is about 500-700 metres away. It was thus submitted that he seemed to be a planted witness.

At the previous hearing, the court had directed the State to verify how Shashi Kant had witnessed the incident which took place in Gali No. 10 and Gali No.3. The State responded stating that the distance between Gali No.10 and Gali No.3 is about 350 meters.

The court observed that the witness who is a resident of gali no. 10 might have witnessed the incident of Gali no. 10, but casted doubt on how he could see the present incident, which has taken place in Gali No.3. The court stated that the veracity of the allegations will be tested at trial but since the petitioners have been in custody since April 2020 and the trial will take substantial time, they deserve bail.

Accordingly, the court granted bail to the petitioners on furnishing personal bond in the sum of Rs.20,000 each with one surety in the like amount. The court imposed a condition that the petitioners shall not influence prosecution witnesses and stated that the trial court shall not get influenced by the observations made in this order.

The order may be read here:

 

Related:

Asif Tanha bail plea: Delhi HC seeks unredacted witness statements from trial court

Delhi violence: Court grants stay in trial of case where complainant is also accused

Delhi Court questions improper maintenance of case files in Madina Masjid probe

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Delhi Violence: Court grants bail to accused, questions witness statements

The Court pointed towards the undated witness statements and the High Court discrediting constable witnesses while granting bail to a co-accused in the case

13 Apr 2021

Karkardooma,

A Delhi Court has granted bail to a person arrested for his role during the Delhi violence of February 2020, while observing that the witness accounts of the constables were discredited by Delhi High Court while granting bail to a co-accused in the case. Additional Sessions Judge, Karkardooma, Vinod Yadav observed that the applicant deserved bail on the ground of parity as two other co-accused were already enlarged on bail.

The FIR was lodged against Kasim in March 2020 based on information received from Sushrat Trauma Centre regarding gunshot injury sustained by Prince Bansal, aged 19. The police recorded his statement wherein he stated that on February 25, 2020 he had gone to buy a few things and near Lakhpat school he noticed that a riotous mob was pelting stones, throwing petrol bombs and firing gunshots from the terrace of the house belonging to principal accused Tahir Hussain and suddenly one of the persons from the said riotous mob fired upon him, as a result of which he sustained gunshot injury.

The counsel for the applicant submitted that two other co-accused, Tanveer malik and Shah Alam, had already been enlarged on bail and thus, bail be granted on the ground of parity. Further, the applicant was granted bail in two other FIRs lodged against him. He further argued that the applicant has been falsely implicated in the matter by the investigating agency just because he was declared “Bad Character” in Dayalpur area. It was further argued that applicant has neither been specifically named in the FIR nor recovery of any sort has been effected from him. Further there was no CCTV footage against him and his Test Identification Parade was also not conducted. Further it was contended that there is an unexplained delay of 5 days in the registration of FIR, from the date of incident. Furthermore, statements of the injured and other primary witnesses are all undated and no explanation was provided for the same. Further, the applicant was claimed to have been witnessed by two constables committing the offence however, the court questioned why they waited till the registration of FIR to name the applicant.

The court concluded that the prosecutor was unable to establish that the role assigned to the applicant is not similar to the role attributed to co-accused Tanveer Malik in the matter.

The court accepted the contentions of the applicant and observed that the injured has not specifically named the applicant in his complaint. The court observed that the statements of the witnesses are undated and no call at number 100 was made by the aforesaid witnesses on the date of incident. The court also pointed out that in the chargesheet, the role attributed to applicant is merely of stone pelting and taking active part in the rioting activity, “investigation in the matter is complete and chargesheet has already been filed; trial in the matter is likely to take long time; applicant cannot be made to incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob have to be identified and arrested in the matter,” the court held.

The court held that the applicant deserved bail on the ground of parity and granted him bail on his furnishing a Personal Bond in the sum of Rs.20,000 with one surety in the like amount subject to the condition that he shall not tamper with the evidence or influence any witness in any manner; he shall maintain peace and harmony in the locality and that he shall appear before the Court on each and every date of hearing to attend the proceedings; he shall furnish his mobile number to SHO, PS Dayalpur upon his release from the jail and will ensure the same to be in working condition and further he shall also get installed “Aarogya Setu App” in his mobile phone.

The order may be read here:

 

Related:

Asif Tanha bail plea: Delhi HC seeks unredacted witness statements from trial court

Delhi violence: Court grants stay in trial of case where complainant is also accused

Delhi Court questions improper maintenance of case files in Madina Masjid probe

Delhi Violence: Court grants bail to accused, questions witness statements

The Court pointed towards the undated witness statements and the High Court discrediting constable witnesses while granting bail to a co-accused in the case

Karkardooma,

A Delhi Court has granted bail to a person arrested for his role during the Delhi violence of February 2020, while observing that the witness accounts of the constables were discredited by Delhi High Court while granting bail to a co-accused in the case. Additional Sessions Judge, Karkardooma, Vinod Yadav observed that the applicant deserved bail on the ground of parity as two other co-accused were already enlarged on bail.

The FIR was lodged against Kasim in March 2020 based on information received from Sushrat Trauma Centre regarding gunshot injury sustained by Prince Bansal, aged 19. The police recorded his statement wherein he stated that on February 25, 2020 he had gone to buy a few things and near Lakhpat school he noticed that a riotous mob was pelting stones, throwing petrol bombs and firing gunshots from the terrace of the house belonging to principal accused Tahir Hussain and suddenly one of the persons from the said riotous mob fired upon him, as a result of which he sustained gunshot injury.

The counsel for the applicant submitted that two other co-accused, Tanveer malik and Shah Alam, had already been enlarged on bail and thus, bail be granted on the ground of parity. Further, the applicant was granted bail in two other FIRs lodged against him. He further argued that the applicant has been falsely implicated in the matter by the investigating agency just because he was declared “Bad Character” in Dayalpur area. It was further argued that applicant has neither been specifically named in the FIR nor recovery of any sort has been effected from him. Further there was no CCTV footage against him and his Test Identification Parade was also not conducted. Further it was contended that there is an unexplained delay of 5 days in the registration of FIR, from the date of incident. Furthermore, statements of the injured and other primary witnesses are all undated and no explanation was provided for the same. Further, the applicant was claimed to have been witnessed by two constables committing the offence however, the court questioned why they waited till the registration of FIR to name the applicant.

The court concluded that the prosecutor was unable to establish that the role assigned to the applicant is not similar to the role attributed to co-accused Tanveer Malik in the matter.

The court accepted the contentions of the applicant and observed that the injured has not specifically named the applicant in his complaint. The court observed that the statements of the witnesses are undated and no call at number 100 was made by the aforesaid witnesses on the date of incident. The court also pointed out that in the chargesheet, the role attributed to applicant is merely of stone pelting and taking active part in the rioting activity, “investigation in the matter is complete and chargesheet has already been filed; trial in the matter is likely to take long time; applicant cannot be made to incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob have to be identified and arrested in the matter,” the court held.

The court held that the applicant deserved bail on the ground of parity and granted him bail on his furnishing a Personal Bond in the sum of Rs.20,000 with one surety in the like amount subject to the condition that he shall not tamper with the evidence or influence any witness in any manner; he shall maintain peace and harmony in the locality and that he shall appear before the Court on each and every date of hearing to attend the proceedings; he shall furnish his mobile number to SHO, PS Dayalpur upon his release from the jail and will ensure the same to be in working condition and further he shall also get installed “Aarogya Setu App” in his mobile phone.

The order may be read here:

 

Related:

Asif Tanha bail plea: Delhi HC seeks unredacted witness statements from trial court

Delhi violence: Court grants stay in trial of case where complainant is also accused

Delhi Court questions improper maintenance of case files in Madina Masjid probe

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Sabrang

Gauhati HC upholds Akhil Gogoi bail under UAPA

The Court observed that unless the act strictly comes within the letter and spirit of provisions of UAPA, it l ll lcannot be applied

13 Apr 2021

Akhil Gogoi bail under UAPA

The Gauhati High Court refused to interfere with the order of Special NIA Court granting bail to Akhil Gogoi who was charged under the Unlawful Activities (Prevention) Act (UAPA). The Division bench of Justices Suman Shyam and Mir Alfaz Ali found no infirmity in the order and dismissed the appeal filed by the National Investigation Agency (NIA) deeming it to be devoid of merit.

The appeal was filed by NIA against the Special NIA court, Guwahati order passed in October 2020 granting bail to Akhil Gogoi. The special court had held that the materials against Gogoi cannot be prima-facie said to be a "terrorist act" done with the intention of threatening the unity, integrity and sovereignty of India or a terrorist act done with the intention to strike terror in the people, and thus granted bail.

The case against Gogoi is that in December 2019, he led a crowd of around 6,000 people in Dibrugarh causing economic blockade and had pelted stones in which the Sub-Inspector Tulumoni Duwarah was injured. In the FIR it was alleged that the mob had tried to murder police personnel on duty. In a matter of days, the case was transferred to NIA and Gogoi and other accused were charged under UAPA. The special court granted bail to the respondent, Gogoi, and thus NIA filed this appeal before the High Court.

Arguments

The NIA submitted that Gogoi led the entire movement which had turned into a violent protest, where a Railway Station and a police vehicle was burnt down besides

spreading sporadic incidents of violence and stone pelting upon the police personnel. Also, at the instance of the respondent, a conspiracy was hatched by the accused persons to attack a particular community of that locality so as to disturb the unity and integrity of the country.

The counsel for NIA submitted that the special court erroneously ignored the incriminating materials available on record demonstrating the strong likelihood of conviction of the respondent and had employed a completely different standard while considering the bail application.

The counsel for the respondent argued that the materials annexed to the charge-sheet does not disclose any ingredient to prima facie presume that the respondent was guilty of any offence committed under section 15(1) of UAPA and thus the bail was rightly granted. He further argued that Citizenship amendment Act (CAA)is a very sensitive issue for people of Assam, and the protests were spontaneous and that there was anger amongst the protestors which had turned violent leading to arson and stone pelting. He contended that there was nothing on record to show that the respondent had ever asked the mob to resort to violence or to attack any community.

Court’s observations

The court observed that “an unlawful activity under section 2(1)(o) of the Act of 1967

could even be spoken words including a provocative speeches but in order to

constitute an offence under the Act of 1967 the same must be done with the

intention to cause death of , or injuries to any person or persons, or to cause loss of or

damage to or destruction of any property aimed at disturbing the unity, integrity,

security and sovereignty of the country”.

The court observed that unless the act complained of strictly comes within the letter and spirit of section 2(1)(o) read with section 15(1) of the Act, the provisions of the Act will not be applicable. Section 2(1)(o) defines unlawful activity and section 15(1) defines a terrorist act. The court thus inferred that unlawful act of any other nature, including acts arson and violence aimed at creating civil disturbance and law and order problems, which may be punishable under the ordinary law, would not come within the purview of section 15(1) of the Act unless committed with the requisite intention.

The court pointed out that section 43D(5) of UAPA imposes fetters on the discretionary power of the Court to release an accused on bail if the court is of the opinion that the accusation is prima facie true. Thus, the accused has to show that the materials on record taken on face value would not establish his guilt and the agency has to produce materials to enable the court to believe that the accused in guilty.

The court cited NIA Vs Zaroor Ahmed Shah Watali (2019) and stated that it will only consider the correctness of the approach of the Special Court in passing the bail order.

The court stated that “It may be true that taking advantage of the public sentiment associated with enactment of CAA, the respondent had delivered fiery speeches whipping up strong passion amongst the masses, which in turn, had led to violent activities which are punishable under the law. It may also be correct to say that the violence resorted by the members of the mob was the direct fall out of the speech delivered by the respondent.”

The court however accorded significance to consider whether Gogoi’s speeches were delivered with the intent to commit a "terrorist act" thereby challenging the unity, integrity, security and sovereignty of India and whether the materials placed on record was sufficient to make the court prima facie believe the same.

The court held that the view held by the special court while granting bail “is a possible view in the facts and circumstances of the case” and thus, found no error in the court’s approach. The court recognised the power to grant bail to be discretionary and held that, “While examining the correctness of the decision rendered in exercise of such discretionary power, if two views are possible, the appellate court would be loath in interfering with the view of the Court below”.

The court, thus, refused to interfere with the order of the Special Court granting bail to Gogoi and held the appeal to be devoid of merit and thus dismissed it.

The complete order may be read here:

 

Related:

Anti CAA protests: Gauhati HC denies bail to two booked under UAPA

Gauhati HC rejects Akhil Gogoi’s bail plea

SC rejects Akhil Gogoi’s bail plea in UAPA case

Gauhati HC upholds Akhil Gogoi bail under UAPA

The Court observed that unless the act strictly comes within the letter and spirit of provisions of UAPA, it l ll lcannot be applied

Akhil Gogoi bail under UAPA

The Gauhati High Court refused to interfere with the order of Special NIA Court granting bail to Akhil Gogoi who was charged under the Unlawful Activities (Prevention) Act (UAPA). The Division bench of Justices Suman Shyam and Mir Alfaz Ali found no infirmity in the order and dismissed the appeal filed by the National Investigation Agency (NIA) deeming it to be devoid of merit.

The appeal was filed by NIA against the Special NIA court, Guwahati order passed in October 2020 granting bail to Akhil Gogoi. The special court had held that the materials against Gogoi cannot be prima-facie said to be a "terrorist act" done with the intention of threatening the unity, integrity and sovereignty of India or a terrorist act done with the intention to strike terror in the people, and thus granted bail.

The case against Gogoi is that in December 2019, he led a crowd of around 6,000 people in Dibrugarh causing economic blockade and had pelted stones in which the Sub-Inspector Tulumoni Duwarah was injured. In the FIR it was alleged that the mob had tried to murder police personnel on duty. In a matter of days, the case was transferred to NIA and Gogoi and other accused were charged under UAPA. The special court granted bail to the respondent, Gogoi, and thus NIA filed this appeal before the High Court.

Arguments

The NIA submitted that Gogoi led the entire movement which had turned into a violent protest, where a Railway Station and a police vehicle was burnt down besides

spreading sporadic incidents of violence and stone pelting upon the police personnel. Also, at the instance of the respondent, a conspiracy was hatched by the accused persons to attack a particular community of that locality so as to disturb the unity and integrity of the country.

The counsel for NIA submitted that the special court erroneously ignored the incriminating materials available on record demonstrating the strong likelihood of conviction of the respondent and had employed a completely different standard while considering the bail application.

The counsel for the respondent argued that the materials annexed to the charge-sheet does not disclose any ingredient to prima facie presume that the respondent was guilty of any offence committed under section 15(1) of UAPA and thus the bail was rightly granted. He further argued that Citizenship amendment Act (CAA)is a very sensitive issue for people of Assam, and the protests were spontaneous and that there was anger amongst the protestors which had turned violent leading to arson and stone pelting. He contended that there was nothing on record to show that the respondent had ever asked the mob to resort to violence or to attack any community.

Court’s observations

The court observed that “an unlawful activity under section 2(1)(o) of the Act of 1967

could even be spoken words including a provocative speeches but in order to

constitute an offence under the Act of 1967 the same must be done with the

intention to cause death of , or injuries to any person or persons, or to cause loss of or

damage to or destruction of any property aimed at disturbing the unity, integrity,

security and sovereignty of the country”.

The court observed that unless the act complained of strictly comes within the letter and spirit of section 2(1)(o) read with section 15(1) of the Act, the provisions of the Act will not be applicable. Section 2(1)(o) defines unlawful activity and section 15(1) defines a terrorist act. The court thus inferred that unlawful act of any other nature, including acts arson and violence aimed at creating civil disturbance and law and order problems, which may be punishable under the ordinary law, would not come within the purview of section 15(1) of the Act unless committed with the requisite intention.

The court pointed out that section 43D(5) of UAPA imposes fetters on the discretionary power of the Court to release an accused on bail if the court is of the opinion that the accusation is prima facie true. Thus, the accused has to show that the materials on record taken on face value would not establish his guilt and the agency has to produce materials to enable the court to believe that the accused in guilty.

The court cited NIA Vs Zaroor Ahmed Shah Watali (2019) and stated that it will only consider the correctness of the approach of the Special Court in passing the bail order.

The court stated that “It may be true that taking advantage of the public sentiment associated with enactment of CAA, the respondent had delivered fiery speeches whipping up strong passion amongst the masses, which in turn, had led to violent activities which are punishable under the law. It may also be correct to say that the violence resorted by the members of the mob was the direct fall out of the speech delivered by the respondent.”

The court however accorded significance to consider whether Gogoi’s speeches were delivered with the intent to commit a "terrorist act" thereby challenging the unity, integrity, security and sovereignty of India and whether the materials placed on record was sufficient to make the court prima facie believe the same.

The court held that the view held by the special court while granting bail “is a possible view in the facts and circumstances of the case” and thus, found no error in the court’s approach. The court recognised the power to grant bail to be discretionary and held that, “While examining the correctness of the decision rendered in exercise of such discretionary power, if two views are possible, the appellate court would be loath in interfering with the view of the Court below”.

The court, thus, refused to interfere with the order of the Special Court granting bail to Gogoi and held the appeal to be devoid of merit and thus dismissed it.

The complete order may be read here:

 

Related:

Anti CAA protests: Gauhati HC denies bail to two booked under UAPA

Gauhati HC rejects Akhil Gogoi’s bail plea

SC rejects Akhil Gogoi’s bail plea in UAPA case

Related Articles


Theme

Campaigns

Videos

Archives

IN FACT

Podcasts

Podcasts

Podcasts

Analysis

Archives

Podcasts

Subscribe to Rule of Law