New Delhi Aug 11(ILNS): A Delhi Court will shortly pronounce its order on a bail application filed by Advocate Ashwini Kumar Upadhyay, who was sent to two days judicial custody remand yesterday, in connection with an FIR registered against him and others for allegedly promoting hatred or enmity within different religious communities.
On behalf of Advocate Ashwini Kumar Upadhyay, Senior Advocates Vikas Singh, Pradeep Rai, Siddharth Luthra, Gopal Sankaranarayanan appeared along with Advocate Ardhendumauli Prasad & Advocate Ashwani Dubey. The Court has reserved its order after a detailed hearing for pronouncement at 4 PM today.
Advocate Ashwini Kumar 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 organized by Ashwini Upadhyay at Jantar Mantar, on Sunday, where the defamatory and anti-Muslim slogan was raised.
The Delhi Police has registered against him and other accused under various sections 188/268/270/153A of Indian Penal Code (IPC) and 3 of ED Act and 51 (b) DM Act.
During the hearing today Senior Advocate Vikas Singh submitted that as per the FIR, the time was mentioned 9 AM to 12 Noon, the Videos become viral at 5 PM. We are more concerned that police can’t arrest on mere suspicion. This is a case where Mr. Upadhyay was there from 10-11 am. 153A has two very very important elements, only after those are 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 Siddharth Luthra said, that if a person did something under 153A, it should be by words, etc. there is no role attributable to him (Mr. 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 leave us with a scarce on a face,” he added.
Public Prosecutor appearing on behalf of Delhi Police objected to the submission made by petitioners counsel and asked the Court to look at the gravity of the offenses. “During the pandemic time, you have gathered so many people at a sensitive place. The celebration was going on there. The Parliament was in session which is just a mile away from the spot. Arranging this gathering and in these 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 section 153A, as 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 has to be seen whether the hate speech was given by him or on his pretext, it has to be seen, said the Court.
Yesterday, the Delhi Police had sought 14 days judicial custody remand accused Ashwani Upadhyay, Preet Singh, Vinod Sharma, and Deepak Kumar to prevent the accused persons from committing any further offense, 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.
The Court after hearing the submissions sent them to a two-day JC Remand by observing that the investigation is at a nascent stage and the possibility of the tampering with the evidence cannot be ruled out at this stage./ILNS/KR/SNG