A Patiala House Court granted bail to advocate Ashwini Kumar Upadhyay in the case of raising communal inflammatory slogans in the capital on Sunday.
Metropolitan Magistrate Udbhav Kumar Jain passed the order on Wednesday evening on a bond of Rs 50,000. “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,” said Jain while granting bail.
Upadhyay had been sent to two-days judicial custody remand on Tuesday in connection with an FIR registered against him and others for allegedly promoting hatred or enmity between different religious communities.
On behalf of Advocate Ashwini Kumar Upadhyay, Senior Advocates Vikas Singh, Pradeep Rai, Sidharth Luthra, Gopal Sankaranarayanan appeared along with Advocate Ardhendumauli Prasad & Advocate Ashwani Dubey. The Court had reserved its order after a detailed hearing for pronouncement at 4 PM today.
During the hearing today, Senior Advocate Vikas Singh submitted that as per the FIR, the time was mentioned 9AM to 12 Noon, the Videos become viral at 5PM. We are more concerned about that police can’t arrest on mere suspicion. This is a case where Upadhyay was there from 10-11 am. 153A has two very very important elements, only after those satisfied the action would be taken.
He said, “I beseech that bail should be granted today itself and he should not be subjected to the incarceration even for a minute.”
Senior Advocate Sidharth Luthra said, that if a person done something under 153A, it should be by words etc. there is no role attributable to him (Ashwini Upadhyay) as he wasn’t present there at the spot.
“Non Compliance of Judgment laid down in Arnesh Kumar and section 41 CrPC should be taken into consideration. Very often In life we may be part of a public gathering but that should not left us with a scarce on a face,” he added.
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Learned Public Prosecutor appearing on behalf of Delhi Police objected the submission made by petitioners counsel and asked the Court to look at the gravity of the offences. “During pandemic time you have gathered so many people at a sensitive place. Celebration was going on there. The Parliament was in session which is just a mile away from the spot. Arranging this gathering and in this areas should be seen as to create ruckus in the area,” he said.
He further added, that there was no permission by the police to allow gathering at Jantar Mantar and despite that they all gathered over there and raised anti Muslim slogans. The matter is under investigation and the role of the accused could not be denied and it’s a matter of further investigation.
Metropolitan Magistrate Udbhav Kumar asked, “We are concerned with the Section 153A, was he was present on the spot when the slogans were raised?”
To which he replied, “this is part of the investigation. He was there. They were done at the same place at the time.”
The Court then specifically raised a query as to whether the accused was present at the time. Prima Facie it has to be seen whether the hate speech was given by him or on his pretext, it has to be seen, said the Court.
Upadhyay was arrested by Delhi Police and produced via VC before the duty MM Tanvi Khurana yesterday, along with the other 5 accused in connection with the alleged FIR which was lodged after a rally was organised by Ashwini Upadhyay at Jantar Mantar, on Sunday, where defamatory and anti-Muslim slogans were raised.
The Delhi Police has registered against him and other accused under various section 188/268/270/153A of Indian Penal Code (IPC) and 3 of ED Act and 51 (b) DM Act.
Yesterday, the Delhi Police had sought 14-day judicial custody remand for Ashwini Upadhyay, Preet Singh, Vinod Sharma and Deepak Kumar to prevent the accused persons from the committing any further offence, for proper investigation, to prevent the accused from tampering with the evidence or from threatening or influencing the witnesses in the present matter. It was also mentioned that the judicial custody remand is also required so that the accused may not create any unruly situation affecting the public tranquility.
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