Delhi High Court grants statutory bail to Sharjeel Imam in alleged incendiary speech case

The bench also critiqued trial court’s conduct and said that nothing could have disentitled the accused from seeking relief under Section 436-A of CrPC


The Delhi High Court bench of Justices Suresh Kumar Kait and Manoj Jain on May 29 granted statutory bail to Sharjeel Imam in the case of alleged incendiary speech delivered during the anti-CAA protests. In their verdict, the bench remarked that the trial court “got swayed by the enormity of the allegations” and said that there is no justifiable reason preventing the court from granting him the relief. The High Court granted bail to Sharjeel as he has already undergone 4 years in prison as an undertrial, which is more than half of the maximum prescribed imprisonment period for the charges made against him, making him eligible for statutory bail under Section 436-A of the Code of Criminal Procedure (CrPC). Notably, while the charge of sedition (Section 124-A) carries a maximum of life imprisonment, the said provision is suspended by the Supreme Court order in the case of S.G. Vombatkere Vs. Union of India, thus making it inapplicable in the present case.

The relevant portion of Section 436-A of CrPC reads, “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties”.

Even though Sharjeel has been granted bail in this case, he will continue to remain behind the bars as he is also booked in another case for his alleged role in larger northeast Delhi violence conspiracy case. Sharjeel was first arrested in the present case on January 28, 2020 as he was booked under Sections 124A (sedition), 153A (promoting enmity), 153B (Imputations, assertions prejudicial to national integration), 505(2) (Statements promoting enmity) of the Indian Penal Code (IPC) and Section 13 (punishment for unlawful activities) of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

Pertinently, the application for statutory bail was first move d in the trial court by Sharjeel under Section 436-A of CrPC, but the Shahdara trial court judge Sameer Bajpai rejected his plea, observing that “although the applicant did not ask anybody to pick weapons and kill the people but his speeches and activities mobilised the public which disrupted the city and might be the main reason in outbreak of the riot”. The trial court said his speeches at Jamia Millia Islamia and Aligarh Muslim University can be deemed “seditious” in dictionary meaning, and the speeches were made to incite “the public in order to create a havoc in the city, capturing the minds of “a particular community” and inciting them to engage in disruptive activities.”, Indian Express reported. Consequently, the trial court rejected his bail and extended his detention citing “exceptional circumstances”.

Following the trial court order rejecting his bail plea, Sharjeel moved an appeal to the Delhi High Court under Section 21 (4) of National Investigation Agency Act, 2008, which states that “Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail”.

Analysis of the Delhi High Court verdict

As the Delhi HC granted statutory bail to Sharjeel Imam, it specifically looked at Section 436-A of the CrPC, Section 13 of UAPA, and Section 124-A of the IPC (presently suspended). The court noted that the provision on sedition (IPC Sec. 124-A) which carries a maximum punishment of life imprisonment is suspended by the Supreme Court through S.G. Vombatkere Vs. Union of India (Writ Petition(C) No.682 Of 2021), and therefore it will not apply to the present case. Excluding sedition, Section 13 of UAPA is the most stringent provision applied against Sharjeel, which carries a maximum punishment of 7 years. This basically entails that Sharjeel would be eligible for a bail as he has already served 4 years in prison, which is more than half of the maximum 7 years punishment as is prescribed under Section 13 of UAPA.

The prosecution with the aim of delaying the bail to Sharjeel argued that the maximum punishment provided in each Section for which the accused is charged can be given aggregately or one after the other. The bench strongly rejected the argument of the State and said, “…a very strange argument was raised before the learned Trial Court by State. It was contended that if conviction is recorded, the sentence likely to be awarded is to be seen in terms of the legal provision under section 31 Cr.P.C., which prescribes that when a person is convicted at one trial for two or more offences, the punishments shall run one after the other, unless the court, in its discretion, orders that the punishments shall run concurrently. Obviously, such contention did not cut any ice.”

Interpreting Section 436-A of the CrPC, the bench said that careful look at the provision suggests that under Section 436-A an accused would not be entitled to “automatic” bail and it cannot be claimed as a matter of right. The bench continued that courts may for reasons recorded in writing, decline the bail under the said proviso. However, the High Court emphasised that though the court can order further detention, “the reasons have to be rational and logical, else the very purpose of introducing the provision would stand defeated.”

The State argued that the explanation to Section 436-A of the CrPC notes that detention undergone due to delay caused by the accused should be excluded from the calculation of total period of detention, and further alleged that it was Sharjeel who delayed the proceedings by stalling the trial against the offence of sedition. Consequently, he should not be allowed the relief under Section 436-A of the CrPC, the prosecution argued.

The court rebutted such claim saying “If any accused chooses to avail legal remedy and that too in terms of specific judicial pronouncement, he cannot be blamed for causing delay in the matter.” The bench relied on S.G. Vombatkere vs. Union of India, Abdul Subhan Qureshi vs. State (NCT of Delhi), and Ajay Ajit Peter Kerkar vs. Directorate of Enforcement as it granted bail to Sharjeel Imam.

Notably, as the court gave relief to Sharjeel, it argued that trial court got swayed by the enormity of the allegations and said “we have no hesitation in holding that there was, actually speaking, nothing on record which could have disentitled the accused from seeking relief under Section 436-A Cr.P.C.”

The copy of the judgement can be found here:



Bail not Jail, India’s constitutional courts’ bumpy ride towards personal liberty | CJP

How difficult is it to obtain Bail under the UAPA? | CJP

What does it take to secure bail under UAPA? | CJP



Related Articles