On August 2, 2022, the Allahabad High Court denied bail to Kerala journalist Siddique Kappan in connection with the Hathras conspiracy case where he has been booked under the Unlawful Activities Prevention Act (UAPA) and other charges.
Justice Krishna Pahal of the Lucknow bench of the Allahabad High Court observed that based on the investigation on record, the journalist “had no work at Hathras.” According to him, “The State machinery was at tenterhooks owing to the tension prevailing due to various types of information being viral across all forums of media including the internet. The said sojourn of the applicant with co-accused persons who do not belong to media fraternity is a crucial circumstance going against him.”
Journalist Siddique Kappan was arrested by the Mathura police on October 5, 2020, along with three others – Ateeq-ur-Rehman, Masood Ahmed and Alam, and has been detained ever since on trumped up charges. He was arrested on an apprehension that he may cause a breach of peace but later on he was charged under Unlawful Activities (Prevention) Act (UAPA) and till today he has not been granted bail.
It is the case of the prosecution that the co-accused persons with whom Kappan has been alleged to be travelling are said to have been collecting funds and running a website ‘Carrd.com’ which highlighted the incident of mob lynching, exodus of labourers and Kashmir issues on the website. It has also been said that the funds collected by them were used to disrupt social harmony and incite violence.
However, the Senior Learned Counsel for Kappan denied all such allegations, and submitted that the money transferred to his account was his hard earned money which has nothing to do with any offence whatsoever. He also submitted that Kappan had no prior association with co-accused Alam who happened to be the driver of the car.
It is the case of the AGA for the State, Shivnath Tilhari, that no proper cause has been shown by the applicant pertaining to his presence near Hathras at such crucial time when State was going through social unrest, and that Kappan merely used journalism as a cover to fulfill his ulterior motives.
Counsel for the applicant argued he had been falsely implicated in the case as he was going to Hathras only to discharge his duty as a professional journalist and was illegally detained by Mant Police, District Mathura in violation of his fundamental rights. He stated that he was not associated with any banned organization and that there is no criminal history of the applicant.
He further stated that the provisions of UAPA Act are not applicable to the applicant as the amended sanction under the Act has been taken by the Department on June 8, 2021. The said sanction is ipso facto illegal at the outset and has been challenged by the applicant by filing a petition under Section 482 Cr.P.C. in the High Court which is still sub-judice.
After hearing both sides, the Court held, “The tainted money being used by the applicant and his colleagues cannot be ruled out.”
The Court cited the case of National Investigation Agency vs. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, where the Apex Court, while overturning the High Courts order of granting bail to the accused, has stated that Section 43(D)(5) prohibits a Court from granting bail to accused if on a perusal of a final report filed under Section 173 Cr.P.C., the Court is of the opinion that there are reasonable grounds to believe that the accusations against such person are prima facie true. Justice Pahal further stated, “The Apex Court has also observed that the High Court had applied an altogether wrong approach by examining and evaluating the evidence in detail. The Court is not supposed to delve into the admissibility and inadmissibility of documentary and oral evidence at the stage of bail.”
Dismissing the bail application, the court held, “Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, considering the complicity of accused, severity of punishment and the settled law propounded by the Apex Court in the case of Zahoor Ahmad Shah Watali (supra), at this stage, without expressing any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.”
A copy of the order maybe read here:
Brief Background
Siddique Kappan, is a Delhi-based journalist working with a Malayalam news portal Azhimukham. He is also secretary of Kerala Union of Working Journalists (KUWJ) Delhi unit, and a senior reporter and also a member of Press Club of India. He had gone to cover the Hathras horror of the alleged gangrape and murder of the 19-year old Dalit woman, that had made headlines all around the world. Siddique Kappan never reached the spot from where he had intended to write his news reports.
Soon after his arrest in October 2020, the KUWJ issued a statement expressing that they could not get in touch with Siddique and that neither the Hathras Police Station nor the State Police Department could provide any information on taking him into custody.
Since the day of arrest, Kappan has been treated inhumanly, has been allegedly tortured in custody, and was denied even his fundamental rights to get access to his lawyer. The Hindu reported that the Delhi-based journalist was among four people arrested by the Uttar Pradesh police when they were on their way to Hathras. They were arrested after the State police claimed that a “conspiracy to defame the State government and trigger caste riots over the Hathras incident” was afoot. The four were taken into custody at a toll plaza in Mathura when they were travelling in a car from Delhi to Hathras. The car was stopped after “police found their activities suspicious,” following which they were taken into custody, according to the Mathura police, said the news report.
Chargesheet
The First Information Report (FIR) against Kappan, registered on October 7, 2020 in Mathura, charges him under Section 120B (punishment for criminal conspiracy), 124A (sedition), 153A (promoting enmity between different groups on grounds of religion, etc) and 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code (IPC), and under sections 17 (punishment for raising funds for terrorism act), 18 (punishment for conspiracy etc.) of the Unlawful Activities (Prevention) Act, 1967, (UAPA) and also under sections 65 (Tampering with computer source documents), 72 (Penalty for Breach of confidentiality and privacy) of the Information Technology Act, 2000 (IT Act).
In April 2021, the police filed a chargesheet against Kappan listing more than 50 witnesses to support the police charges. In this 5,000-page chargesheet, the UP police alleged that Kappan and others received funds totalling almost Rs. 80 lakhs from financial institutions in Doha and Muscat to create unrest in the state. The police claimed that they were all Popular Front of India (PFI) activists and their student wing (Campus Front of India) leaders were going to Hathras under the garb of journalism with a very “determined design to create a caste divide and disturb law and order situation.”
KUWJ’s petition
A day after Kappan’s arrest on October 5, the Kerala Union of Working Journalists (KUWJ) had filed a habeas corpus petition, challenging his custody. The petition argued that the arrest was illegal and unconstitutional and contended that Kappan’s detention violates his fundamental rights under articles 14 (right to equality), 19 (freedom of speech and expression) and 21 (right to life) of the Constitution. An intervention application was also moved by the petitioner union seeking directions from the top court to permit Siddique to speak to his lawyers and family members.
The petition first came up a week later, on October 12, 2020, before a bench headed by Chief Justice of India SA Bobde. The court, however, expressed its disinclination to entertain the petition and nudged senior advocate Kapil Sibal, appearing for KUWJ, to approach the high court instead. The bench then listed the matter after four weeks and also refused to issue notice to the UP government on the matter.
Meanwhile, on October 29, 2020 an application was filed alleging multiple attempts from KUWJ and Adv. Mathews to meet Kappan since his arrest had failed. A bail application was also filed. It was after 43 days in custody, on 17 November, that Kappan finally spoke to Adv. Mathews (his Advocate) on the phone for five minutes.
In early January 2021, KUWJ had moved an urgent application in the Supreme Court, seeking Kappan’s immediate release from Mathura jail to meet his 90-year-old ailing mother, Kadija Kutty.
On February 15, the court granted him bail and said, “Mother is said to be in a critical situation and that she is likely not to survive for many days. In these circumstances, we consider it appropriate to permit the detenu to visit his mother and return to prison at the end of the 5th day.” However, the court imposed strict conditions on Kappan.
Deteriorating health
When the country was reeling under the second wave, Kappan had collapsed in the bathroom with serious injuries and eventually tested positive for Covid-19. He was hospitalised in a Mathura hospital, when the KUWJ prayed for the top court to take cognisance of his deteriorating health condition and in the interest of justice, they sought for his transfer to New Delhi for treatment. The Supreme Court ordered his transfer to a hospital in Delhi for treatment, but in May 2021, SabrangIndia reported that Siddique was “secretly discharged” from AIIMS and was taken to Mathura Jail. Raihanath, Kappan’s wife, had at that time told SabrangIndia, “I only learnt about it late last night that he may have been discharged. I did not know any updates nor was his lawyer informed and he was shifted secretly at night. He was brought to hospital and since May 1 when I came to Delhi, I had been trying to see him once.”
Mathura Court dropped some charges
In June 2021, the Mathura court also dropped the proceedings against Siddique Kappan and three other persons in connection with a case registered against them under charges related to apprehension of breach of peace while they were on their way to Hathras. They had been discharged of the charges under Criminal Procedure Code (CrPc) sections 151(Arrest to prevent the commission of cognisable offences), 107 (Security for keeping the peace in other cases) and 116 (Inquiry as to truth of information).
Bail rejected by Sessions Court
In July 2021, Kappan’s bail plea was rejected by Additional Sessions Judge Anil Kumar Pandey who ruled that there was prima facie case that the journalist and other co-accused were trying to disturb the law and other situation when they were heading to cover the gang-rape incident in Uttar Pradesh. The Mathura court also observed that Kappan’s financial transactions in his bank account revealed that he was provided with the funds to conduct “anti-national” and illegal activities. The judge ruled that they damaged the integrity of the nation by provoking a particular community.
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