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On September 9, the Supreme Court granted bail to Kerala journalist Siddique Kappan, who has been under the custody of the Uttar Pradesh Police since October 6, 2020. He faces charges under the Unlawful Activities Prevention Act (UAPA).
Kappan was arrested while he was on his way to Hathras in Uttar Pradesh where a Dalit woman had died after allegedly being gang-raped. The police had claimed that the accused was trying to disturb the law and order in Hathras, and also alleged that the accused had links with the Popular Front of India (PFI).
Kappan was kept under custody for alleged offences under Sections 17/18 of UAPA, Sections 120B 153A/295A IPC, 65/72 IT Act for alleged conspiracy to incite riots following the gangrape-murder of a Dalit minor girl in Hathras. The Lucknow bench of the Allahabad High Court had in August, 2022 rejected the bail application of Kappan,
Today, a bench comprising of Chief Justice of India U.U. Lalit and Justice S. Ravindra Bhat garnted him bail, directing Kappan to remain in Delhi for the next six weeks after the release from an Uttar Pradesh prison and also mark his presence with local police station every week. There were other conditions too.
Proceedings before the court
Senior Advocate Mahesh Jethmalani, appearing for the State of Uttar Pradesh, was quoted by LiveLaw, as saying, “Kappan was in meeting of PFI in Sep 2020. It was said in the meeting that funding had stopped. It was decided in the meeting that they will go to sensitive areas and incite riots. On October 5, they had decided to go to Hathras to incite riots. He was funded with Rs 45,000 to create riots. He claimed to be accredited to a newspaper. But we have found that he was accredited to the official organization of PFI. PFI has to be notified as a terrorist group. One State, Jharkhand, has notified it is a terrorist group. He was there to incite riots. It’s a little bit like what happened in Bombay in 1990.”
He further submitted that a few ID cards and some material had been discovered. As reported by LiveLaw, the CJI then asked, “Are ID cards, some literature, and any explosives found? You claim to have discovered literature in his possession.” In response to this, Jethmalani said no explosives had been discovered, and Sr. Adv. Sibal claimed that the books were discovered in the vehicle. The court made note of the same and said, “At best you can say this man was travelling in a car, and he was apprehended with three others, there was some literature in the car, the other three are linked with PFI? They are accused of what offences…153A?”
As the accused were allegedly sowing discontent by raping a young girl, Sr. Adv. Jethmalani argued that this situation equally qualified for the application of section 124A. CJI Lalit questioned whether there was a chance that the trial’s conclusion would come quickly. Jethmalani responded by saying that the State was trying to hasten the trial.
The judges asked the defendants if they had taken any action in furtherance of the material that was discovered in the vehicle. Advocate Jethmalani responded by saying the State has statements from co-accused to back up his claim. The comments of the co-accused, however, could not be used as evidence, according to the CJI. When Jethmalani stated that they were attempting to get an approver, when CJI Lalit made the comment that if as long as approval was ongoing, the case was not ready for trial.
The court then considered whether the material discovered was provocative in nature following Sr. Adv. Jethmalani describing it as “a toolbox for riots.”
At this point, Senior Adv. Kapil Sibal interjected and said that the referred literature was for “Justice for Hathras Girl.” When the bench further inquired into the contents of the literature contents which was believed to be possibly dangerous, Adv. Jethmalani offered that it suggests that they were on their way to Hathras and the type of material they were intending to disseminate among the Dalit population. He drew attention to a passage in the literature that described how the police had incinerated a body without informing the victim’s relatives. According to LiveLaw, he said, “This is propaganda, and the Dalits themselves are not involved in it, so the passions are stoked. There are instructions on how to write emails and run social media campaigns, which the PFI is doing.”
However, the bench was not satisfied with the arguments. CJI Lalit asked, “Every person has the right to free expression. He is trying to show that victim needs justice and raise a common voice. Is that a crime in eyes of law?” Referring to the Nirbhaya protests, Justice Bhat reportedly said, “Similar protests were in 2012 at India Gate, which led to a change of law. Till now you have not shown anything provocative.”
The CJI then questioned whether there was any documentation that demonstrates that Kappan must engage in rioting? Sr. Adv. Sibal emphasised that some of the documents had nothing to do with India and that the case as a whole was “not prosecution, but persecution.” Here, Jethmalani brought the court’s attention to a toolbox that contained advice on how to be safe during riots, including what to dress and what not to wear, how to deal with tear gas, and to run alongside black people if you see them doing so. However, Adv. Sibal was quick to interrupt stating that the toolkit was from “Black Lives Matter” protests from the United States of America.
Following the arguments, CJI Lalit said that the bench had decided to give Siddique Kappan bail.
The order said, “We have been taken through some of the documents placed on record. At this stage we refrain from dealing with and commenting upon the progress and investigation and material gathered by the prosecution in support of its case as the matter is still to be taken up at the stage of framing of charges.” But the court granted him bail saying, “The appellant shall be produced before the concerned Trial Court within three days from today; and the Trial Court shall release him on bail, subject to such conditions as the Trial Court may deem appropriate to impose to ensure presence and participation of the appellant in the matter pending before it.”
The order further said, “Upon release, the appellant shall stay in the 3 city of Delhi and within the jurisdiction of Nizamuddin police Station and shall not leave the city of Delhi without express permission of the trial court; that the appellant shall record his presence in the concerned police station every Monday in a register maintained for the purpose; that this condition shall be applicable for first six weeks from the date of release.” It added, “After six weeks, the appellant shall be at liberty to go back to his native place and stay at Mallapuram in Kerala but shall report at the local police station in similar fashion that is to say on every Monday and mark his presence in the register maintained in that behalf.”
Kappan is to deposit his passport to the investigating authority, and is prohibited from contacting anyone connected with the case.
The entire order may be read here:
Background
Kerala based journalist Siddique Kappan has been lodged in Mathura Jail for over 300 days. The Uttar Pradesh Police have filed a 5,000-page chargesheet against him and 3 others who were arrested along with him, and have accused them of receiving Rs. 80 lakhs from financial institutions in Doha and Muscat to create unrest in the state.
Kappan, who is also the secretary of Kerala Union of Working Journalists Delhi unit (KUWJ), and a senior reporter 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. Soon after his arrest, 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.
The Uttar Pradesh government submitted in its affidavit that they found “suspicious literature, one that could have an adverse impact on peace,” from their electronic devices. Police have also claimed that the four including Kappan were linked to the Popular Front of India (PFI) and its student body Campus Front of India and that they 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.”
Over these two years, he has reportedly been tortured and harassed by jail authorities, denied legal assistance and medicines (he is diabetic), taken a fall in the jail bathroom, contracted Covid-19, has been chained to a hospital bed preventing him from moving or even using the washroom, forced to urinate in a bottle, and has also lost his mother. Kappan had been granted bail twice by the Supreme Court for visiting his ailing mother and for being treated for COVID-19. On both times, there had not been any allegations that he tried to jump bail or influence witnesses or tamper with evidence.
As per a BBC News report, Kappan was “dragged and beaten with sticks on thighs, slapped on face, forced to stay awake from 6pm to 6am on the pretext of questioning and subjected to serious mental torture”. According to his wife Raihanath Kappan, the police repeatedly asked Siddique if he ate beef (many Hindus revere cows, and in recent years Muslims have been lynched for eating beef or transporting cattle), and also asked him why Muslims have an affinity to Dalits.
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