The Delhi High Court has reserved its order in a plea filed by Sharjeel Imam seeking bail in cases whereby he has been charged with sedition and certain provisions of the Unlawful Activities (Prevention) Act, 1967 against him.
Imam has been in custody since January 28 when he was arrested for delivering allegedly seditious and inflammatory speeches during the protests against Citizenship Amendment Act (CAA) and National Register of Citizens (NRC). He was booked under sections 153A [Promoting enmity between different groups on grounds of religion, race etc.], 124A [sedition] and 505 [Statements conducing to public mischief] of the IPC apart from some sections of the UAPA.
He had filed for default bail under the UAPA since the statutory period for keeping him in custody was expiring within 90 days. On the 88th day of his custody an application was filed in the trial court to extend his custody thus depriving him of his right to get statutory or default bail as per the provisions of section 167(2) of the CrPC. The trial court extended the stipulated time provided for investigation for Delhi Police by granting time of 3 more months, thus denying bail to Imam.
Thus, Imam moved the Delhi High Court against this order of the trial court. The case is being heard by Single Judge Bench of Justice V Kameswar Rao which, at previous hearing had asked Delhi Police to file additional status report. LiveLaw reported that the counsel for Imam, Senior Advocate Rebecca John submitted before the court that no notice was even issued by the trial court regarding the application of Delhi Police seeing extension of time and instead, she had received a message over Whatsapp from the Investigating Officer (IO). She further contended that as required under section 43D(2) of the UAPA, no compelling reasons were provided by the police for keeping Imam in custody beyond the statutory period nor was Imam produced before the Court to contest the allegations against him.
John further stated that just because the IO asks for extension, the public Prosecutor is not bound to accept the submission as is; the PP is expected to apply his/her mind before endorsing the IO’s report. She further said that the pandemic cannot be a compelling reason for seeking extension of time for investigation and deny liberty to the accused. The PP contended that any difference in the PPP’s report and IO’s report would vitiate it and that there is nothing wrong with the PP reproducing the IO’s report.
The Assistant Solicitor General (ASG) Aman Lekhi appearing on behalf Delhi Police, retorted to John’s contention that notice wasn’t served, saying, “Argument that notice should be given is wrong. At the stage of investigation, the accused has limited say. It’s not an irregularity which vitiates the proceedings. Mere absence or lack of production of person cannot be said to grant bail”. Further on the requirement of appearance of the accused, Lekhi said, “The accused needs to be informed. He does not need to be served with reasons. He does not have the right to contest… if need for detention is established, would his appearance matter? Their understanding of notice itself is problematic. Their understanding of ‘compelling reason’ is also not determinative.”
John, in her rejoinder, questioned why was the presence of the accused required if he was not allowed to contest, “This is a criminal proceeding. Is he going to be a part of the furniture in the courtroom? Nowhere has the Supreme Court said that they have no right to contest”.
LiveLaw further reported that John stressed upon the inalienable rights of the accused which could not be overruled and could not be said to be inferior to the rights of the victim. She once again took serious objection to the method of communication of the IO which was termed as “serving notice” and stated that the trial court had believed a false statement.
She concluded her rejoinder saying Covid-19 cannot be a ground for non-filing of chargesheet, as iterated by the Supreme Court, “Nothing is more important than the rights of the accused. The rights are mine; they are supposed to follow the procedure. My client has every right that the accused have under the Constitution.”
The single judge bench of Justice Rao reserved judgment in the case while directing both parties to file a 5-page note on their submissions by June 28.