Criminal antecedents could not be used to deprive Sharjeel Imam his right to bail: Allahabad high court

JUSTICE Saumitra Dayal Singh of the Allahabad high court, on November 27, granted bail to JNU student, Sharjeel Imam, on the ground that his impugned speeches did not incite violence, and that, contrary to allegations against him, he did not call anyone to bear arms.

Imam had been arrested in September 2020 in connection with a speech he made at the Aligarh Muslim University (AMU) in January 2020 against the Citizenship Amendment Act (CAA). Four FIRs were registered against him under Sections 124A (sedition), 153A (promoting enmity on grounds of religion, race, etc), 153B (imputations, assertions prejudicial to national integrations), and 505(2) (statements creating or promoting enmity, hatred, or ill-will) of the Indian Penal Code (IPC).

Imam’s counsel argued that the ingredients for the offences had not been made out as he had not encouraged his listeners to take up arms or engage in violence or commit any acts of hatred. He further argued that there was no evidence submitted by the police to suggest that the speech had any effect whatsoever on the listeners. The FIR was filed nine days after the speech was made, and there was nothing that indicated that the speech had resulted in violence. Furthermore, the counsel argued that an FIR could not be registered without prior sanction obtained under Section 196 of the Code of Criminal Procedure (CrPC), and that multiple FIRs had been filed against a single action.

Opposing the bail, the Additional Advocate General, appearing for the State, argued that the FIRs indicated that all the ingredients of sedition and other offences had been made out, and brought the Court’s attention to cases registered against Imam in the past, including for the offence of murder under Section 302 of the IPC, to suggest that he is a habitual offender, engaging in such activities prior to and after the occurrence.

Noting that he had spent one year and two months of a possible maximum three year sentence, if found guilty, Justice Saumitra Dayal Singh said, “..without   referring   to   the   exact allegation made against the applicant,  it may be noted that on an undisputed basis neither the applicant called any one to bear arms nor any violence was incited as a result of the speech delivered by the applicant. The exact imputations made and the effect prompted by the applicant by words uttered or gestures made etc. may remain to be examined at the trial which is yet to commence. Inasmuch as the applicant has remained confined for more than one year and two months against a maximum punishment that he may suffer on conviction being three years, for that reason alone the applicant has become entitled to bail, at this stage, in the undisputed facts of this case.”

Leaving the remaining challenges made by Imam’s counsel to be determined by the trial court, Justice Singh concluded that the arguments put forth by the Counsel for the State as to criminal antecedents could not be used to deprive the applicant of bail. The Court ordered that Imam be released on bail, upon his furnishing a personal bond of  Rs. 50,000 with two sureties of the like amount to the satisfaction of the court concerned. It also set the following conditions:

(i)             The applicant shall not tamper with the prosecution evidence   by intimidating/pressuring the   witness, during the investigation or trial.

(ii)            The applicant   shall   cooperate   in   the   trial   sincerely without seeking any adjournment.

(iii)          The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

Breach of any of these conditions will render the bail cancelled, the Judge cautioned Imam.

How Imam was denied bail earlier by a Delhi court

Earlier, Imam was denied bail on  October 22, after the additional sessions judge of a Delhi court observed that the “tone and tenor of the speech” which he delivered on December 13, 2019 was “incendiary” and tended to have “a debilitating effect upon public tranquility, communal peace and harmony of the society”.

The judge had reached this conclusion despite noting that the evidence to support the police theory that persons instigated by his speech had indulged in acts of rioting, mischief, attacks on the police, etc., was scanty and sketchy.

“Neither any eye witness has been cited by prosecution nor there is any other evidence on record to suggest that co-accused got instigated and committed the alleged act of rioting etc upon hearing the speech of applicant/accused Sharjeel Imam. Further, there is no evidence corroborating the version of prosecution that alleged rioteers/co-accused were a part of the audience addressed by applicant/accused Sharjeel Imam on 13.12.2019,” the judge, Anuj Agrawal, had noted then.

Judge Agrawal had also observed: “Upon specific inquiry by this court, Ld. Special Public Prosecutor fairly conceded that at this stage, there is no material available with the prosecution to the effect that applicant/accused and other co-accused persons were members of any common social platform viz WhatsApp etc so as to fasten the liability of acts of co-accused upon present applicant with aid of section 109 IPC.  The essential link between the speech dated 13.12.2019 and the subsequent acts of co-accused is conspicuously missing in the instant case”.

Judge Agrawal had added:

“The theory as propounded by investigating agency leaves gaping holes which leaves an incomplete picture unless the gaps are filled by resorting to surmises and conjectures or by essentially relying upon the disclosure statement of applicant/accused Sharjeel Imam and co-accused. In either case, it is not legally permissible to build the edifice of the prosecution version upon the foundation of imagination or upon inadmissible confession before a police officer.

“Once the legally impermissible foundation of imaginative thinking and disclosure statement of accused/co-accused are removed, the prosecution version on this count appears to be crumbling like a house of cards. Though Ld. Special Public Prosecutor argued that said disclosure statements are relevant under section 8 of Indian Evidence Act, however, the said argument appears to be nothing but a desperate attempt on his part to save the day for prosecution.”

Judge Agrawal, however,  overlooked the fact that section 153A IPC could not be invoked against Imam, if his speech were to be analysed carefully.

In his December 13, 2019 speech, Imam had only sought to mobilise public opinion to oppose the Citizenship (Amendment )Act and the National Registry of Citizens. More importantly, he did not promote enmity between people of two different religions, which would have invited the application of Section 153A of IPC.

Justice Singh’s grant of bail to Imam for a similar speech he made at AMU is a testimony to how judicial discretion, if used wisely and fairly, could provide relief to anyone subjected to harassment on unjustified grounds by the police.