Without question, the despicable, despotic and dastardly manner in which an eminent lawyer of the Supreme Court named Ashwani Upadhyay had been arrested by the Delhi Police with ugly scenes of helpless women being dragged and pushed in front of Connaught Place Police Station in Delhi who were opposing the arrest has to be strongly condemned in the strongest possible words. He was arrested and remanded to two days judicial custody in connection with the anti-Muslims slogans raised at an event organized at Jantar Mantar. Did Ashwani say anything even a single word against Muslims? Certainly not. If Supreme Court lawyers themselves are arrested in such reprehensible manner as we saw in case of Ashwani Upadhyay then God help this country!

It takes no Albert Einstein to conclude that the Delhi Police had no germane reason to arrest eminent Supreme Court lawyer Ashwani Upadhyay who is known widely for speaking up against all the inadequacies in our prevalent legal system and who is best known for his various PILs that he keeps filing from time to time and the most famous being on uniform civil code which has certainly brought him in the limelight among others. Police could not produce any credible and incriminating evidence against Ashwani for his alleged involvement in instigating the mob who shouted provocative slogans against Muslims.

This alone explains why the learned Metropolitan Magistrate Udbhav Kumar Jain in this leading, learned, laudable and landmark judgment titled State Vs. Ashwani Upadhyay U/s 188/268/270/153 A IPC, S. 3 Epidemic Diseases Act & S. 51 (b) DM Act after hearing both the sides promptly granted bail to Ashwani Upadhyay who was arrested in connection with the anti-Muslim speeches made on August 8 at an event held at Jantar Mantar. Videos of mob at the gathering shouting slogans against Muslims had emerged. Upadhyay expressed shock over what was said and called for the arrest of those who shouted such provocative slogans. Upadhyay had organized a meeting calling for the repeal of colonial-era laws on occasion of the anniversary of the Quit India movement of August 8, 1942 against the Britishers. He has been asked to deposit a surety of Rs 50,000.

At the outset, it is mentioned in this commendable, cogent, composed and convincing judgment that:
In view of the directions of the Hon'ble High Court of Delhi vide order No. 439-470/RG/DHC-2021 dated 22.07.2021, matters are being taken up through video conferencing using Cisco Webex. It is certified that there was no interruption during the proceeding and all the parties were heard.

Needless to say, it is first and foremost put forth in this notable judgment that:
This is an application for grant of bail to the applicant/accused under Section 437 CrPC (inadvertently mentioned as Section 439 CrPC). Reply has been filed by the IO wherein the IO has vehemently opposed the bail application on the ground that release of applicant/accused will be prejudicial in maintaining public tranquility and will create further serious law and order situation. There are chances that the applicant/accused will create communal disharmony.

As we see, it is then stated by the learned Metropolitan Magistrate Udbhav Kumar Jain that:
At the very outset, all the offences alleged against the accused, except for offence u/s 153A IPC, are bailable in nature hence, the hearing in the present application is confined to non-bailable offence alleged against the accused.

Quite remarkably, it is then pointed out that:
Sh. Vikas Singh, Ld. Senior Advocate 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 . Ld. Senior Advocate 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. Ld. Senior Advocate 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.

Furthermore, it is then stated in the next para that:
Ld. Senior Advocate further submits that the mandate of Section 41A CrPC is violated as neither any notice was served upon the applicant/accused nor any justification for arrest of the applicant/accused is provided as clearly, all the offences alleged are having imprisonment of less than 7 years. Ld. Senior Advocate submits that applicant/accused is being illegally incarcerated and therefore bail should be granted to the applicant/accused forthwith.

Adding more to it, we then see that it is stated in the next para that:
Ld. Senior Advocate Sh. Sidharth Luthra supporting the contention of Ld. 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. Ld. Senior Advocate 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. Ld. Senior Advocate 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.

As against what is stated above, it is then stated in the next para that, Countering the submissions made on behalf of applicant/accused, Ld. APP for the state has pointed out two main points of concern as far as the applicant is concerned. Firstly, Ld. APP for the state points out towards the gravity of offence in the terms of sensitivity of the issue. In this regard, Ld. APP for the state submits that this is the time of a Pandemic wherein large gatherings are not being allowed to prevent spread of Covid-19 Pandemic, the gathering was held without any permission, gathering was held near Parliament during the ongoing Monsoon Session. 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.

What's more, it is then further stated in the next para that:
Rebutting the submissions made by Ld. Senior Advocate of the applicant/accused, Ld. APP for the state submits that there is no delay in registration of FIR as it was only after scrutinising the material available, applicant/accused was arrested. Ld. APP for the state further submits that the IO concerned has acted with due diligence in exercise of power conferred to him u/s 41 Cr.PC. Ld. APP for the state further submits that if the applicant/accused was not involved in the commission of offences, he should have acted in a bonafide manner to inform the concerned police officials regarding commission of such offences. To crack nexus and find out all the persons involved in alleged offence, Ld. APP for the state submits that custody of applicant/accused is required for proper investigation of the case.

Quite forthrightly, it is then pointed out in the next para that:
In rebuttal, Ld. Senior Advocate Sh. Vikas Singh submits that the applicant accused is not denying that he was not present at the gathering however, the applicant/accused was neither present on the spot at the time of commision of alleged hate speech. Ld. Senior Advocate submits that applicant/accused has credible standing and he is a reputed member of the Bar. He is not going to abscond. The arrest of the applicant/accused is against the rule of law. No involvement of the accused can be seen from the FIR or from the reply of the IO. Even in the viral videos applicant/accused cannot be seen.

Be it noted, it is then enunciated in the next para that:
Ld. Senior Advocate Sh. Sidharth Luthra countering the submissions of Ld. APP for the state, placing reliance upon the para 12 of the Arnesh Kumar judgment and submits that the non bailable offence u/s 153A IPC has maximum imprisonment of three years and clearly action of the police officials in apprehending the applicant/accused is against the rule of law. It is no doubt that the IO has discretion to arrest the applicant/accused u/s 41 CrPC however, such powers had to be exercised cautiously and in light of the law of the land including the judgments passed by Hon'ble Supreme Court of India and Hon'ble High Courts. Ld. Senior Advocate submits that reliance of Section of 149 IPC by Ld. APP is misplaced as it is only relevant when a person participate in an unlawful assembly knowing the common object of such assembly. It is no where on record that the applicant/accused was present on the spot at the time of commission of offence u/s 153 A IPC. Ld. Senior Advocate, countering the submission of Ld. APP for the state with regard to failure of the applicant/accused in acting in a bonafide manner, refers to Section 39 CrPC wherein the duty to inform about the commission of offence no where enumerates the offences alleged against the applicant/accused. It is not even the case of a man at the wrong place.

In addition, it is then stated in the next para that:
Sh. Ardhendu Mauli, Ld. Counsel for the applicant/accused has placed reliance upon guidelines passed by the Hon'ble Supreme Court of India in Suo Motu Writ Petition (civil) No. 1 of 2020 IN RE : Contagion of Covid-19 Virus in Prisons to prevent the over crowding of prisons during this pandemic time.

Quite rightly, it is then brought out in the next para that:
Ld. Senior Advocate Sh. Gopal Shankarnarayan submits that the viral videos are now in public domain and no where it can be seen that applicant/accused was present when the present offence u/s 153A IPC was committed by the applicant/accused. It is further submitted that there is no credible information available with the investigating agency to apprehend. Name of the applicant/accused is being misused by some miscreants due to which the agency had apprehend the applicant/accused. Ld. Senior Advocate submits that no reason has been provided by the investing agency why custody of applicant/accused is required when everything allegedly incriminating is available in public domain no where pointing towards the applicant/accused. Ld. Senior Advocate submits that mere presence of the applicant/accused at one point of time during the gathering cannot be attributed to the whole chain of events happened in active absence of the applicant/accused.

While continuing in the same vein, it is then stated in the next para that:
Sh. Ashwani Dubey, Ld. Counsel assisting Ld. Senior Advocates and for the applicant/accused submits that the applicant has acted in bonafide manner and has duly offered the investigating agency for his assistance in the investigation. In this regard, the applicant/accused has also sent e-mails to the Commissioner of Police, Delhi. Ld. Counsel submits that the applicant/accused has deep roots in the society.

To put things in perspective, the Court then observes that:
Heard both sides at length. Perused the record. The Hon'ble Supreme Court in Prahlad Singh Bhati vs NCT Delhi AIR 2001 SC 1444 held that while granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. Indeed it is difficult time for everyone during this pandemic and serious view should be taken against those who violates the guidelines/restrictions to curb this pandemic, yet the offences as far as breach of these guidelines are concerned are bailable in nature, which can be dealt by the Trial Court on merits.

Most remarkably and most significantly, the Court then minces just no words to state most eloquently, elegantly and effectively that:
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 there 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.

Finally, the Court then holds after considering everything that:
As a cumulative effect of the aforesaid discussion this Court is of the 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.

Needless to say that nothing observed herein shall have any bearing upon the merits of the case. In view of the above, present application stands disposed of. Proceedings be sent to the Court concerned through proper channel. Copy of the order be sent to Ld. Counsel for the applicant/accused through email/whatsapp.

No wonder, Ashwani Upadhyay got bail. He did not say anything against a particular community or religion that he could be arrested. He did not provoke anyone to do anything wrong that he could be arrested. He did not justify the hate slogans that we heard by some rowdy and anti-social elements.

This begs the moot question: Is it then justified that a Supreme Court lawyer with proven credentials who has an impeccable reputation also and is an eminent public figure also who has even worked himself as BJP spokesperson is arrested most promptly at the drop of a hat when he did not say even a word wrong? The larger question worth billion dollars that also arises here is:

Why in some other cases when leaders raise themselves provocative slogans are they not similarly arrested? This is what I find most despicable and never on earth can this be ever justified no matter how much anyone no matter how eminent he/she may be and no matter how high public office he/she may be occupying may try to justify!

On the contrary, Ashwini Kumar Upadhyay had also later put a video stating that if the video is true, then action should be initiated against those who raised the slogans! Still why the hell was Ashwini arrested so brazenly? The Delhi police has a lot of explaining to do on this!

We all know very well especially those who are in the legal profession that the Apex Court keeps reiterating time and again that arrest should be an exception and not the rule as we saw in case of Joginder Kumar vs State of UP AIR 1994 SC 1349: 1994 SCC (4) 260 wherein it was most commendably held also that:
No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so.

Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.

Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do!

It certainly merits no reiteration also that this must be implemented in letter and spirit! But if Supreme Court lawyers like Ashwini Kumar Upadhyay are instead themselves arrested so brazenly then this certainly tantamounts to making a huge mockery of the Supreme Court itself which cannot be justified under any circumstances by anyone not even the Delhi police itself! It is the Delhi Police itself which must really comprehend this also in its own best interest before it gets rapped by the Apex Court also!

No wonder, Delhi Police's specious claims of arresting Ashwini Kumar Upadhyay stands outrightly rejected before the lower court as is being splashed also in various news portals and news channels with whole judgment also now available in the public domain. Now if it still wants to have eggs on its face and appeal against it then certainly no one of us can do anything! One can only just pity their wisdom that they don't even know inspite of knowing law that when can a case be called prima facie with a valid and good ground to arrest any individual! The worst thing that now they can do is to go in for appeal where again they will land themselves in troubled waters and for this no one but they themselves will be solely responsible!

All said and done, it is high time and before arresting any individual, the police must have proof of that individual himself saying something provocative which could provoke people to do something wrong! The power to arrest of police is very wide but that does not mean that it is used at the drop of a hat when the circumstances clearly demonstrates that there was need for the arrest of any particular individual. Most of all, the police should have taken into account that Ashwani Upadhyay is an eminent and acclaimed Supreme Court lawyer with impeccable reputation and if it had done so, it would not have to face what it faced – loss of reputation as the Court outrightly rejected all its claims and reasons for arresting Ashwani Upadhyay!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh