Delhi Court Grants Bail to Ex-BJP Leader Advocate Ashwini Kumar Upadhyay in Anti-Muslim Speeches Case at Jantar Mantar [Read Order]

(Judicial Quest News Network)

In a significant development a Delhi court on Wednesday granted bail to advocate Ashwini Kumar Upadhyay arrested in connection with anti-Muslim speeches made at Jantar Mantar on August 8.

While granting the bail the Metropolitan Magistrate Udbhav Kumar Jain noted that as far as the allegation under section 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc. And doing acts prejudicial to maintenance of harmony of the Indian Penal Code goes, except for a mere assertion there was nothing on record to show that the alleged hate speech to promote enmity between different groups was done in the presence or at the behest of the applicant/accused.

“It was indeed a sensitive time and place when there was no need to gather, hence the applicant/accused has clearly violated against the guidelines issued to curb the Covid-19 Pandemic and Section 144 CrPC which was applicable at that place during that time. Pointing towards the second point of concern, Ld. APP for the state submits that it is a clear case of involvement of applicant/accused as the event was organized at the behest of the applicant/accused. Ld. APP for the state further submits that the gathering was an unlawful assembly in which the applicant/accused actively participated knowing the common object of that unlawful assembly “the court observes.

Senior Advocate and President Supreme Court Advocates Bar Association Vikas Singh, appearing on behalf of applicant/accused submits that this is blatant abuse of power by the Police. Police cannot apprehend anyone indiscriminately. It is submitted that it is an admitted fact that the applicant/accused was present on the spot in the morning and not at the time of alleged incident relating to hate speech committed u/s 153A IPC. The applicant/accused has left the spot at or around 11.00

am and reached his home around 12:15 pm in Ghaziabad. He submits that he has seen the video personally and on perusal of the said video it can be seen that the hate speech was made after it rained however, the applicant/accused has left the spot even before the rain started He further submits that all the offences except for the offence u/s 153 A IPC are bailable. For the purpose of Section 153A IPC, it is imperative that the hate speech should have been made at the instance of a person or the person should have actively participated in making such remarks which promotes enmity between different groups.

It is submitted by Ld. Senior Advocate that had the accused been present on the spot at the time of commission of the alleged offence, the accused should have been arrested then and there. Even otherwise, the FIR should have been registered soon after the alleged offence was committed. However, perusal of the FIR clearly shows that the FIR was registered belatedly.

Senior Advocate Sidharth Luthra supporting the contention of Senior Advocate Sh. Vikas Singh, submits that it is a clear case of non-compliance of the Arnesh Kumar judgment which is applicable in the present case. He has placed reliance  has placed reliance upon the order passed by Hon’ble Supreme Court of India in Munnavar vs State of MP vide order dated 06.02.2021 wherein the petitioner was released on bail,

although interim, due to non-compliance of Arnesh Kumar judgement. He further submits that the case of the applicant/accused is distinct from the other accused person. Ld. Senior Advocate further submits that applicant/accused may be a part of the meeting at particular point of time but that does not imply that he shall be blamed for each and every thing that may have happen in his absence. Hence, the applicant/accused be released.

The conduct or alleged breach of law by others subsequent to his departure cannot be attributed to a person who is not present. The police could have his phone CDR and location examined before the hasty arrest.

As far as the offence u/s 153A IPC is concerned except for mere assertion, there is nothing on record to show that the alleged hate speech to promote enmity between different groups was done in the presence or at the behest of the applicant/accused.

Even during hearing, this Court has inquired from Ld. APP and so far, there is nothing against the

accused in the alleged video. It is not the case where their chances that applicant/accused will abscond.

Conspiracy is no doubt hatched behind closed doors and that the investigation in the present matter is at nascent stage that however, does not imply that liberty of a citizen be curtailed on mere assertions and apprehension.

In B.P Sharma Vs. Union of India, (2003) 7 SCC 309, Hon’ble Brijesh Kumar, J. observed that “it is always better, nay, necessary too that the freedom as guaranteed under the Constitution should be allowed to be enjoyed by the citizens to the fullest-possible extent without putting shackles of avoidable cobweb of rules and regulations putting check and restrictions in the enjoyment of such freedoms.”

As a result of the aforesaid discussion this court is of considered opinion that the applicant/accused deserves to be released on bail subject to filing of personal bond of Rs. 50,000/- with one surety in the like amount and subject to

the following conditions: –

1) The applicant shall continue to cooperate with the ongoing investigations and shall join

the investigation as and when summoned by the IO;

2) The applicant shall not leave the country without the permission of the court;

3) The applicant shall scrupulously appear at each and every stage of the proceedings before

concerned Court so as not to cause any obstruction or delay to its progress