A Delhi Court on Wednesday discharged Chief Minister Arvind Kejriwal and nine others from allegations of unlawful assembly and other offences during their protests in 2012. The others discharged in the case are Banwari Lal Sharma, Dalbir Singh, Mukesh Kumar, Mohan Singh, Balbir Singh, Jagmohan Gupta, Azad Kasana, Harish Singh Rawat and Anand Singh Bisht.

The case concerns a demonstration organized by volunteers of India Against Corruption (IAC) against coal scam outside then Prime Minister Manmohan Singh's house. When the demonstration began proceeding to the PM's house, the Police had used tear gas and water cannons to stop them.

An FIR was then registered against them under various provisions of the Indian Penal Code, including those for rioting and unlawful assembly, and the Prevention of Damage to Public Property Act, 1984. A chargesheet was subsequently filed.

The accused had now challenged the validity of the order passed under Section 144 of the Code of Criminal Procedure, which was in force during the time of the demonstrations, asserting that if this order was bad in law, the entire prosecution case would fall.

Examining the evidence before him, Additional Chief Metropolitan Magistrate Samar Vishal noted that the demonstration was, in fact, peaceful, observing, "...it is not in dispute that the volunteers of an organization, India against Corruption, who have the fundamental right to assemble peacefully and without arms, were holding some kind of demonstration on the date of incident. The demonstration was peaceful as it is evident from the fact that the policemen controlling them had not suffered any kind of injury to them nor is there any prominent damage to any public property."

He further opined that the order for imposition of Section 144 did not record any reasons for such imposition. When specifically asked about the same, the Court was informed that the provision was enforced due to onslaught of festivals. The accused, however, contended that in such a case, with festivals being celebrated in the country throughout the year, this cannot be a valid explanation for enforcement of the provision.

Agreeing with this submission, the Court observed, "... the order passed by ACP Bhoop Singh was an order without assigning any reason for passing it and the reasons which are disclosed later on does show any situation of emergency which warrants its imposition. As discussed above Section 144 Cr.P.C. is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquility or a riot or an affray."

It also emphasized on the importance of communicating the reasons for imposition of Section 144, asserting, "...it was the duty of the issuing authority to disclose all these reasons in the order itself, which has not been done in the present case. Then the communication of the order is also an important factor. It is the only fact regarding communication in the chargesheet that they were warned by the police not to move further. How this warning was given and to whom. Whether any public address system was used in giving of the warning."

Referring to the Ramlila Maidan case, the Court further noted that as per a Standing Order, a banner indicating promulgation of the provision should be displayed, and a Public Address (PA) System should be put in place. It explained, "In Ramlila Maidans case, Hon'ble Supreme Court has referred to an order of Delhi Police ie. the Standing Order 309 which contemplates that there should be display of banner indicating promulgation of Section 144 Cr.P.C., repeated use of Public Address system by a responsible officer-appealing/advising the leaders and demonstrators to remain peaceful and come forward for memorandum, their deputation etc. or court arrest peacefully and requires such announcement to be videographed.

It further contemplates that if the crowd does not follow the appeal and turns violent, then the assembly should be declared as unlawful on the PA System and the same should be videographed. Warning on PA system prior to use of any kind of force is to be ensured and also videographed."

The Court then concluded that the imposition of Section 144 was not valid, observing, "... since the assembly in this case was not an unlawful assembly and has not committed any offence, I have no doubt in my mind to opt for upholding the fundamental rights of citizens under Article 19 of the constitution and finding that neither the prohibition of section 144 Cr.P.C. was valid nor validly communicated. Since the prohibition of section 144 was not valid therefore the accused of this case cannot be said to commit any offence under section 188 IPC and for that matter cannot be said to commit all other connected offences with which they are charged."

The Court, in fact, opined that the violence that ensued was due to the "use of the force by the police and in consequent retaliation by the protesters". It also emphasized on the importance of balancing the fundamental rights granted to the citizens and the need to maintain law and order, observing, "The situation in which I find myself pitched in is to balance the fundamental rights of citizens to assemble peacefully without arms and to exercise their right of speech and expression on one hand and the right of public authorities to maintain law and order. I am conscious of the fact that the right to assemble at a place is subject to reasonable restricts and one such restriction will be the general order and right of other citizens of parallel movement."

With such observations, the Court discharged all those accused in the case.