On December 2, Senior Counsel Kapil Sibal, representing the Kerala Union of Working Journalist (KUWJ) argued before the Supreme Court that the case pertaining to the arrest of the Kerala journalist is a “matter of personal liberty” and he should be released on bail in view of the fact that the FIR did not mention any of his involvement in the matter.
LiveLaw reported that Mr. Sibal offered to implead the wife and daughter of Kappan in the petition after the CJI SA Bobde asked if a third-party organisation can espouse the cause of an accused. The Chief Justice reportedly asked Sibal, “We understand this if the accused is saying this. Can you agitate the rights of the accused like this?” Senior counsel Sibal said that he will implead the family members of Kappan in the petition.
Kapil Sibal submitted that the matter deserved the exercise of the extraordinary jurisdiction by the top court as it involved grave violations. The allegations in the FIR are wholly false, Sibal submitted.
He further referred to the Arnab Goswami order of the Supreme Court to contend that the court has a duty to ascertain if the FIR allegations constitute an offence to justify the custody of the accused. “In Arnab Goswami’s case, your lordships have interfered when the bail application was pending. I will rely on that”, he said.
When CJI observed that the matter requires to go to the High Court and that “Every case is different”, but Sibal submitted that there are exceptional circumstances in the case.
Sibal added that the investigation was “shocking” and that the phone numbers mentioned by the UP Government in its affidavit to claim that Kappan’s relatives were informed about his arrest are non-existent and have no relation to the accused.
Solicitor General Tushar Mehta, appearing for the State of Uttar Pradesh, refuted the allegations. He informed the Bench that after the previous order, a lawyer had met Kappan to obtain his signature in the Vakalatnama. So, Kappan should pursue the ordinary legal remedies of bail like the co-accused, suggested Tushar Mehta.
KUWJ’s rejoinder to UP Govt’s Affidavit
The Uttar Pradesh Government responded to a petition moved by UWJ for Siddique Kappan’s release on November 20, 2020. SabrangIndia reported that during investigation Kappan along with other 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.
With respect to meeting his family members, the affidavit states that Siddique’s family members were informed about his arrest and that the petitioner union has only made false statements. “..immediately after the arrest of accused Siddique Kappan on 05.10.2020 (October 5, 2020), he gave contact details of his brother Mr. Amza (78…). The Police through the mobile phone of Constable Vinay Rahi (82..) informed Mr. Amza on October 5 itself about the time and place of arrest, and exact location where the accused was detained”, mentions the affidavit.
A rejoinder affidavit filed by the organisation through Advocate Shree Pal Singh, as reported by LiveLaw alleges that the averments made by the UP Government in its reply to the habeas corpus plea seeking Kappan’s release, are “false and frivolous”.
The rejoinder states, “Considering the seriousness of the false and frivolous allegations against Mr. Kappan, his continuous illegal detention for 56 days, implicating him in UAPA and other allegedly serious offenses on basis of some newspaper reports, the Deponent seeks an independent enquiry by a retired Judge of this Hon’ble Court to determine the facts connected with the illegal arrest and detention of accused, including the violation of the mandatory guidelines of this Hon’ble Court in D K Basu v. State of West Bengal.”
The petitioner has also alleged that Siddique has been subjected to custodial torture, and he was “beaten with lathi three times on his thigh, slapped three times after taking out the spectacles, dragged, forced to stay awake from 6 PM to 6 AM depriving him of the sleep, without proper medicines, along with serious mental torture from October 5 to 6, 2020”.
The UP government had stated in their affidavit that no lawyer had gone to Mathura Jail with a Vakalatnama to be signed by the accused Siddique Kappan. But the rejoinder states, “the visit of Advocate Wills Mathews, requesting for a meeting with the accused in Jail on 16.10.2020 (October 16, 2020) can be proved by cross checking it with the video recordings of the Jail premises.”
KUWJ had filed a habeas corpus petition against the unconstitutional arrest of Siddique Kappan who was arrested en route to Hathras on October 5. Provisions of UAPA and sedition have been invoked against him and three others who were travelling with him.
The Bench headed by Chief Justice of India and Justices A S Bopanna and V Ramasubramanian adjourned the matter till next week and directed the respondents to file a reply affidavit, if any, in the meantime.
The order may be read here: