Allahabad HC quashes case against Dr Kafeel Khan for anti-CAA speech

Allahabad HC Image Courtesy:barandbench.com

In a significant decision for Dr. Kafeel Khan who has been under the Uttar Pradesh government scanner for years now, the Allahabad High Court had cleared him of all criminal charges for his speech against the Citizenship Amendment Act, 2019 (CAA). The bench of Justice Gautam Chaudhary quashed the entire criminal proceedings initiated against Dr Khan after he delivered a speech at Aligarh Muslim University (AMU) during an anti-CAA protest in December 2019.

The court has also set aside the cognisance order of the Chief Judicial Magistrate, Aligarh. The FIR was registered against him under sections 153A (promoting enmity between different groups on grounds of religion etc.), 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements creating or promoting enmity, hatred or ill will between classes) of IPC stating that his speech had disrupted harmony between communities. The chargesheet in this case filed in March 2020.

It is pertinent to note that on the basis of the same speech, he was also detained under the National Security Act (NSA), the order that was quashed by the Allahabad High Court allowing Dr. Khan to reunite with his family after seven months of incarceration.

Arguments

The primary argument raised by Dr. Khan’s counsel was that no prior sanction of the central or state government or the District Magistrate was taken before registering the FIR under sections 153A, 153B and 505(2) of IPC which is a requirement under section 196 of CrPC. The section 196 of CrPC states that no court shall take cognisance of these offences except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.

The court’s findings

The court cited Jharkhand High Court’s decision in Swaraj Thackeray vs. State of Jharkhand & ors 2008 CRL L.J. 3780 as well as Madhya Pradesh High Court’s decision in Sarfaraz Sheikh vs. the State of Madhya Pradesh and observed that, “before taking cognizance of the offence under IPC, prior prosecution sanction has not been taken by the central government or the state government or the District Magistrate and the learned Magistrate did not properly comply with the relevant provisions while passing the order of cognizance”.

On this basis alone, the court allowed the application and criminal proceedings against Dr Khan were quashed, while remanding the matter back to the Chief Judicial Magistrate Court, Aligarh. The court directed the Judicial Magistrate court to take cognisance of the charges against Dr Khan only after obtaining prior sanction of the appropriate authorities i.e., central government or the state government or the District Magistrate.

The high Court order may be read here:

Kafeel Khan’s tryst with the criminal justice system

In August 2017, Khan was charged for negligence, corruption and dereliction of duty as more than 60 children died in Gorakhpur’s BRD Medical College due to oxygen shortage.

He was arrested on September 2, 2017 and remained in jail until his bail in April 2018.

A departmental inquiry had absolved him of all charges and after spending seven months in jail, he was granted bail by Allahabad High Court on April 25, 2018. Dr. Kafeel Khan, the head of the encephalitis ward in the hospital, managed to save many lives and the parents in the hospital said that had it not been for his work, the number of deaths could have been higher.

On May 10, 2019, a division bench of Supreme Court comprising Justice Sanjay Kishan Kaul and Justice Indira Banerjee ordered the enquiry regarding suspension of Dr. Kafeel Khan to be concluded timely and directed UP government to pay all subsistence allowances payable to Dr. Khan pending his suspension.

Dr. Khan was detained in Mumbai in January, 2020 for an allegedly provocative speech at the Aligarh Muslim University (AMU) amidst the anti-CAA protests on December 13, 2019.

On September 1, 2020, a Division Bench of Chief Justice Govind Mathur and Justice Saumitra Dayal Singh of the Allahabad High Court had revoked the NSA charges against Dr. Khan, who was lodged in the Mathura jail and the extension of his detention period was also declared illegal.

Around midnight on September 2, 2020 Dr Khan was released from detention.

In December 2020, the Supreme Court upheld the Allahabad High Court’s order quashing his detention under NSA.

On August 6, 2021 the Uttar Pradesh Government informed the Allahabad High Court that it has decided to withdraw the re-enquiry against Khan which was started on February 24, 2020. This is the second inquiry- after an earlier one gave Dr. Khan, a clean chit.

On August 13, the state government informed the high court that an independent disciplinary proceeding was initiated against him in another matter and an order of suspension was separately passed on it, which continues to hold. The next hearing in this case is August 31, 2021.