Justice Subramonium Prasad suggested that the duo withdraw their plea for the time being, as the SEM court was reconsidering the sureties furnished by Das and Ranka today at 2 PM.
Cockroach Janta Party (CJP) activists Saurav Das and Ashutosh Ranka on Wednesday withdrew their petition before the Delhi High Court against a special executive magistrate (SEM) court order sending them to judicial custody till October 21.
Justice Subramonium Prasad suggested that the duo withdraw their plea for the time being, as the SEM court was reconsidering the sureties furnished by Das and Ranka today at 2 PM.
Advocate Abhik Chimni, appearing for Das and Ranka, agreed to do so.
At the start of the hearing, Justice Prasad asked counsel for the duo,
“Here is a case where one preventive notice has been broken and when you give for second preventive notice…A person goes there gives a bond, breaks the bond, correct or not we will see later.. Breaks the bond in which case…in such a case, insistence on a surety, can it be said to be that illegal or that much against the law?”
He then said,
“When you go and break a barricade, the chances of 10 or 20 more people in violation of Section 163 (BNSS) is very high. There may be persons who might not be in your and who may do things. We are seeing what is happening outside our country. Arson etc. You may have started with something you say is peaceful. For that purpose you take police permission which is to prevent unwanted persons who join your group and spoil your name.”
He urged them to first approach the revisional court before moving the High Court.
“You are a person who has actually broken a bond…Your remedy actually lies in revision. There is a difference between maintainability and entertainability. Maintainable it is. I do not see the difference between 2 kilometers there and 2 kilometers there (the jurisdictional court). If it is a revisable order why come in Article 226?
When the matter is coming up today, why run here? Also, if it is a revisable order would it not be appropriate for you do withdraw this, see what happens at 2 PM [before SEM court] and then see what is available to you in law…Instead of arguing now, why not keep your powder dry for revision court and then this cort. Suppose things happen in your favour at 4’clock then all gone. If they don’t happen in your favour then you can go to revisional court and then this court.”
The Court went on to question whether Das and Ranka were GenZ.
“People remain the same, cause is changing. Correct? The next question will be who are you. What are you? What is your association what is the purpose of your association? Please understand when there is apprehension of peace and tranquility, all these questions will assume importance…You are drawing the court into a debate which might ultimately not go in your favour.”
Chimni insisted that the October 19 order is fundamentally bad because the SEM court did not even have the jurisdiction to extend custody. He went on to read the SEM order stating that there was a mismatch in photographs and details about Das’ parentage etc.
“The order says no other surety is present. There were two sureties, but the SEM did not even call for them,” he argued.
The Court then took a break to enable the counsel to consider whether he wants to withdraw or push for relief.
Notably, the Delhi Police detained Das and Ranka on October 13 after they allegedly entered the barricaded Jantar Mantar site by climbing its gates.
On October 14, they were sent to judicial custody for five days. On October 19, the custody was extended for two more days.
In its October 19 order, the SEM court said that Das and Ranka’s conduct showed that they have no respect for the law and that there are serious concerns about them breaching peace and tranquillity. It held that their assurance that they would not repeat the alleged conduct did not inspire confidence in light of their previous actions.
The Court said that they showed “habitualness” by calling for protest at de-notified areas.
Further, the SEM rejected the sureties produced for Ranka and Das after finding them unfit. It noted a mismatch between the photograph on one of the sureties’ bond and his Aadhaar card. The Court said that he [the surety] failed to produce another valid identity document and gave unsatisfactory answers. The other surety could not provide basic details of Saurav Das. The Court also found that neither surety could ensure the respondents’ presence before it.
Das and Ranka have contended that they have remained in custody for six days despite repeatedly furnishing sureties. They have argued that the magistrate wrongly extended their judicial custody under Section 135(3) BNSS on the ground that they had defaulted in executing the required bond, despite their sureties having been produced in accordance with law.
The plea states that the SEM order mechanically relies on the police’s application without recording an independent assessment of the circumstances warranting continued custody.
Further, they argue that a protest at a denotified site is, at its highest, a question of regulation, not a threat to public order.
“That a restraint on the liberty of the Petitioners founded on an apprehension of breach of tranquillity or public order and attributed to them, must satisfy the test of Article 19(3) of the Constitution,” the plea states.
On the issue of surety, they rely on a 2018 Delhi High Court judgment in Aldanish Rein v State of NCT of Delhi to argue that a person should be released on a personal bond while verification of the sureties is pending.
The plea further alleges that the magistrate rejected their sureties on grounds that they could not guarantee the petitioners’ appearance before the court and could not recall their parentage.
The CJP activists contend that Section 140 BNSS permits rejection of a surety only if the person is found unfit for the bond. They have also argued that the magistrate failed to specify the number of sureties, the bond amount and the duration of the bond, as required under Section 130 BNSS.
Advocates Abhik Chimni and Pranjal Abrol appeared for Saurav Das and Ashutosh Ranka.
Delhi Police was represented through Additional Solicitor General Chetan Sharma and Central Government Standing Counsel (CGSC) Ashish Dixit.