Observing that every citizen has a fundamental right to make peaceful protest but has a duty to see that such demonstration does not interfere with others' rights, the Delhi high court on Thursday rejected a plea to quash the FIR relating to a constable's death during the December anti-rape agitation.
The court also dismissed another plea for transfer of the probe into the death of Constable Subhash Tomar from the Crime Branch of the Delhi Police to the CBI in the case lodged for various offences, including rioting and destruction of public property.
Turning down the plea of seven out of eight protestors, who were booked under various sections of the Indian Penal Code and Prevention of Damage to Public Property Act, Justice G P Mittal said, "The FIR, at this stage, cannot be quashed and no further directions are needed in the writ petition...The same is accordingly dismissed."
"Every citizen of this country has got a fundamental right to make peaceful demonstration. But has a duty to see that such peaceful demonstration does not interfere with the rights of the other citizens of the city who too have the right to move freely.
"The citizens have a right to form groups, to organise and to assemble together with the aim of addressing issues of common concern. The citizens of the country are expected to ensure that their peaceful demonstration is not hijacked by the anti-social elements. Mass protest is a potent symbol of the exercise of this right, but the protection of this right extends only in respect of a 'peaceful' assembly. This right does not cover a demonstration where the organisers have violent intentions which result in public disorder," the court said in its order.
Justice Mittal took on record the submission of the Additional Solicitor General that the eight accused will not be charged under section 302 of IPC for murder of the constable as there is no evidence against them but they will face the charge of destruction of public property.
The court also dismissed another plea of Gaurav Bansal, a lawyer, for transfer of the investigation to CBI.
"No material has been placed on record by the petitioner which would compel the court to transfer the investigation from Crime Branch to CBI," the court said.
During the earlier hearings in the case, ASG had showed to the judge the video footage of "violent" protests at India Gate on December 23, last year following the brutal rape of a 23-year-old on December 16 and said the plea for quashing of FIR was "premature" as "49 policemen and 69 others (protesters) were injured in the incident, properties were destroyed and the accused cannot decide the course of the probe".
The police had said no evidence had been found against the eight youths with regard to their involvement in the death of constable Tomar.
Tomar, who died on December 25 at RMLHospital, was posted at Karawal Nagar police station and was called to help the police in maintaining law and order at India Gate during protests on December 23.