General considerations for granting bail

Under the Code of Criminal Procedure (CrPC), bail provisions are outlined in Sections 436 to 450, with clear distinctions between bailable and non-bailable offenses. The Bharatiya Nagarik Suraksha Sannhita, 2023(BNSS) has repealed the CrPC, however crimes reported and being tried prior to July 1, 2024 will continue to be governed by IPC and CrPC.

The following factors could be broadly understood as the checklist before the court grants a Bail, or at least they should be, according to the Supreme Court as stated in the case of State of UP vs. Poosu [(1976) 3 SCC 1] and later reiterated in Inder Mohan Goswami vs. State of Uttarakhand [2007 (12) SCC 1] and recently in Ajwar vs. Waseem [2024 INSC 438].

• Securing appearance at trial: The primary objective of arrest and detention is to ensure the accused’s presence during the trial and to guarantee their availability to receive the sentence if found guilty. If the accused’s presence can be reasonably ensured without arrest and detention, it is unjust to deprive them of their freedom.
• Nature and seriousness of the offence: Courts consider the nature and seriousness of the alleged offense, the character of the evidence, and circumstances unique to the accused when deciding on bail.
• Interests of society: The larger interests of the public and the state are also crucial. Factors such as previous convictions, criminal records, and the likelihood of repeating the offense if released on bail are taken into account. Recently, the Supreme Court had denied bail to a person in a case after it observed that the same person has been an accused in multiple heinous crimes (Sushant Kumar Dhalsamanta vs. State of Odisha).[1]
• Judicial discretion: Granting bail involves judicial discretion, which must be exercised judiciously; mechanical rejection should be avoided.

Specific considerations for certain accused

• Minors and Women: Courts may direct the release on bail of any person under 16 years of age, any woman, or any sick or infirm person accused of an offense (Section 437, CrPC).

Conditions for bail:

• Conditions to ensure justice: Courts granting bail have the power to set any condition they consider necessary in the interest of justice.
• Deposit of money: Courts can permit an accused person to deposit a sum of money in lieu of executing a personal bond and providing surety.
• Reporting to authorities: Directing the applicant to report to the investigating officer is a common condition to ensure cooperation with the investigation.

Background:

The bail application was filed by Tejas Shamsunder Shinde, a 20-year-old student pursuing a Bachelor of Management Studies, who had a good academic record. Shinde was seeking bail in connection with an offence punishable under Section 302 of the Indian Penal Code (IPC) — murder. The victim in this case was Shinde’s 69-year-old father, who was unwell and bedridden at the time of the incident, which occurred on February 22, 2023, at approximately 5:00 p.m.

Facts:

• The victim was unwell and bedridden, requiring assistance for his basic needs, which Shinde, having returned from college at 1:30 p.m., provided.
• The father and son had a history of verbal altercations, with the father often abusing Shinde and his mother.
• An altercation occurred at 5:00 p.m. when Shinde opposed his father taking certain un-prescribed medications.
• The altercation escalated, and Shinde inflicted blows on his father with a millstone and then used a kitchen knife to inflict a fatal wound on his neck.
• Shinde then went to the police station and confessed to the crime.

Arguments:

• Applicant: Applicant’s counsel argued that Shinde was a young student with a bright future and that the incident was not premeditated. She emphasised Shinde’s academic achievements and the circumstances leading to the incident. Granting bail would allow him to continue his education and prevent him from becoming a hardened criminal.
• Respondent (State of Maharashtra): Respondent’s counsel argued against the application, pointing to the medical report and the nature of the injuries, contending that it was a cold-blooded murder. She highlighted the cruelty of the act, where Shinde initially inflicted blows with a millstone and then used a kitchen knife to ensure his father’s death.

Court’s observations and reasoning:

The court acknowledged the gruesome nature of the murder, the victim’s medical condition, and the fact that Shinde had been assisting him. The trigger for the incident was identified as the father’s constant abuse towards Shinde and his mother. The court observed that Shinde’s mind “crossed the threshold” due to the repeated abuse, leading to the fatal act (Para 16). The court considered Shinde’s age (20 years) and his status as a student. The court referenced a Delhi High Court judgment in Siddharth Jain v. Shaheed Sukhdev College of Business Studies [2015 SCC Online Del 1342], emphasizing the wide powers of the court to deal with young offenders and the importance of preventing recidivism. The court also cited Ishar Das v. State of Punjab [1973 (2) SCC 65], highlighting the purpose of the Probation of Offenders Act to reform offenders. The court noted that Shinde voluntarily confessed to the crime, indicating contrition. The court recognised that exclusion from education would be an added punishment for a student. The court expressed hope that Shinde would reform and rehabilitate himself. The court viewed the situation as a result of grave provocation due to the victim’s repeated abuse.

Decision

The court granted bail to Shinde, emphasising the opportunity for him to complete his management degree studies. Shinde was directed to be released on furnishing a P.R. Bond of Rs.25,000/- with one or two sureties. Conditions were imposed, including reporting to the investigating officer, cooperating with the trial, and not influencing witnesses. The court hoped Shinde would continue his studies and become a good citizen. The observations, as per the court, were prima facie and for the purpose of granting bail only and should not influence the trial. The bail application, thus, was allowed and disposed of.

Consideration of loss of educational opportunity

In Tejas Shamsunder Shinde, the judge’s consideration of the loss of educational opportunity as factor in granting bail is an innovative tool to ease the restrictions on bail, especially in offences like murder and particularly in patricide cases.

• Rehabilitation and reintegration: The judge recognized that allowing the accused to continue their education supports their rehabilitation and reintegration into society. This aligns with the principle that punishment should aim to reform, not just penalize.
• Preventing hardened criminality: By facilitating the continuation of education, the court aimed to prevent the accused from becoming hardened criminals. This proactive approach addresses the root causes of crime and focuses on positive development.
• Balancing justice and humanity: The decision reflects a balanced approach, considering the seriousness of the offense (Section 302 of IPC) while also acknowledging the accused’s potential for reform and the long-term benefits of education.
• Avoiding double punishment: Depriving an undertrial of educational opportunities effectively imposes a double punishment: first, the deprivation of liberty, and second, the loss of a crucial developmental phase of life.

The court stated as follows in relation to the loss of education and how it affects the individual:

“It should also be noted that in a case where an offender is undergoing studies, his exclusion from education for a period of time is an added layer of punishment over and above what a non-student accused may be subjected to. This is because a student undergoing incarceration suffers loss of precious academic time which cannot be bartered for any wealth in the world. He also constantly witnesses his peers moving ahead in life than compared to him and when the frustration becomes insurmountable such frustration can create an emotion of rebellion, which, coupled with the exposure to criminality in prison, can easily gain traction and push him to become a hardened criminal.”

The court essentially gave a sort of primacy to the fundamental right to education under Article 21A of the Constitution without explicitly mentioning it. This could open doors to approaches where, even in purportedly serious offences, bail could be sought—in addition to the established grounds— on the ground of violation of fundamental rights in a disproportionate manner.

This judgment serves as a reminder that the law is not static and that courts have the discretion to adapt their rulings to the evolving needs of society. It highlights the importance of preventing recidivism by addressing the root causes of criminal behavior and fostering positive development in young offenders.

(The author is part of the legal research team of the organisation)

[1] Special Leave to Appeal (Crl.) No(s). 17256/2024

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This follows last year’s implementation of a uniform policy for junior college students by the college, which also prohibited burqas and hijabs on campus in August 2023. The dress code now introduced by the college is said to be implemented from the new academic year. It also instructs students that if they are wearing any of the prohibited items, then they will be given a common room in the college on the ground floor to remove them. 

A student was seen telling the media that Muslims were specifically told on a WhatsApp group that from now onwards hijab, burqa, and even kurta-pyjama (for men) would not be allowed in the college. The student also told the media that no official notice has been given as of yet. 

#Mumbai: Students of the Acharya Marathe College Chembur #HijabBan pic.twitter.com/FnXdIebpER

— Saba Khan (@ItsKhan_Saba) May 16, 2024

As per a report, over thirty students have submitted a letter to the college, urging it to reconsider the dress code. They also approached national and state human rights commissions to challenge the policy as they say the order violates their right to choose as well as the right to religion guaranteed by the constitution. 

As per a report in the Hindustan Times, when a resident activist spoke to the college administration informing them that the ban on the burqa will deter Muslim women students from attending college, the college responded that the burqa is a ‘barrier’ to education. 

In response to the outrage, the college has staunchly defended the dress code by stating that it aims to increase campus placements and promote ‘etiquette’ among students by encouraging them to dress in ‘decent’ outfits. The newspaper contacted the college’s principal who responded that she cannot comment right now. 

Subodh Acharya who is general secretary of the college’s governing council and a Shiv Sena leader told Free Press Journal, that it was a question of the students’ ‘future’, “We want to increase college placements. If the students go to seek jobs in burqa, will they be considered? Students should be imbibed with values and etiquette – how to live and behave in society,”

In August, 2023, a similar ban was issued by the junior college at the same institute. Young Muslim students who sought to come to study and observe their religion by wearing the burqa or hijab were banned from entering the college premises. The college administration had also promised disciplinary action against them. 

In 2022, after a government order, the Karnataka government, led by the BJP, had banned the hijabs in government colleges across the state. The ban came after hijab wearing students were denied entry into classes at a pre-university college in Udupi in December 2021. After this incident, demands to ban hijab were made by students from the ABVP. This had led to over 1000 Muslim women students being forced to drop out from the college, according to a ground report. To this day, despite the change in government, the ban still remains. Furthermore, the newly elected Rajasthan government led by the BJP has also seemed to be toying with the idea of hijab ban. Recently, hijab wearing students were called “chambal ke daaku” by their teachers and were prevented from entering the school premises in the state after a video of the students went viral. 

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In their protest the students raised several demands including the identification of the perpetrators and action to be taken against them, as well as systemic changes such as the constitution and implementation of a transgender policy in the university.

Sabrang India spoke to Hritik, who stated that they have filed a complaint mentioning all the past attacks they faced by right-wing forces, and that the administration has accepted most of their demands. Hritik said, “Finally the Vice-Chancellor came down to meet us students. We asked why has the administration been sitting on the various complaints by Dalit and Trans people? They have agreed to our demands and released a circular that they will authorise a committee to draft a transgender policy for the upcoming prospectus for the admission cycle. They have also initiated an inquiry in the incident.”

Describing the current situation within HCU and other universities, Hritik explained, “They are not taking into account the transphobia that comes from students that are not even transgender, where Dalit men are harassed and called slurs. We need some measures, not only regulations and guidelines. These mechanisms should address all kinds of harassment and violence that students go through. Of course, infrastructural issues should be taken up. There are a lot of places and universities that are providing gender neutral hostels. But they also have to take into account that transgender students are not isolated from other students.”

In 2022, the UGC issued regulations regarding the university’s responsibility towards its transgender students in a manual titled Accessibility Guidelines and Standards for Higher Education Institutions and Universities. It highlights that university are mandated by law to have independent toilet units for ‘transgender persons,’ and also cites the  Transgender Persons (Protection of Rights) Act, 2019  which mentions that education institutes that are “funded or recognized by the relevant governments” should have inclusive education, sports and recreational facilities for transgender persons without discrimination. However the UGC guidelines fail to recognise the need for safe spaces and built infrastructure such as hostels for transgender students.

Due to the lack of clear legislative provisions or directives, universities continue to neglect the concerns of transgender students, as evidenced in the recent case of arson from Hyderabad. This continues to be an issue that is not isolated but rather endemic to the university establishments in the country. In 2021, University of Hyderabad had similarly seen another incident where a transgender student was humiliated and harassed by a security guard.

Across India, transgender students have to struggle for finding something as simple as hostels while trying to continue their education. In 2022, it took Yashika, a dalit-trans woman from Delhi and student at Punjab University’s Centre for Human Rights and Duties, six months, nine letters, several meetings and two sit-in protests to finally receive accommodation. She went on to file a petition in the Punjab and Haryana High Court seeking directions for a gender-neutral hostel on campus.

In the same year, a petition was also filed in the Karnataka High Court by Dr. Trinetra Haldar Gummaraju for gender neutral hostel facilities across all universities in the state, as she herself had been denied room in the women’s hostel of Kasturba Medical College, Manipal when she studied there for four years. The petitioner noted that transgender students are often forced out of hostels due to incidents of harassment and many students drop out and leave education due to the discrimination they face.

In Tata Institute of Social Sciences, (TISS) Mumbai, student demands and advocacy led to the creation of a separate gender neutral hostel by the administration for students which is frequently dubbed as ‘India’s first gender neutral hostel’. The hostel does not compel students to provide administrative proof or certificate for their gender identity to gain residence at the hostel because for transgender students, particularly those who come out during their academic years, there is a need to recognize the right to self-determine one’s gender identity.

Students and queer collectives across many university campuses have been consistently demanding gender neutral hostels and washrooms, as well as policies that encourage the creation of safe spaces for transgender students.

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Recounting the regrettable events that took place on campus on February 2, a week ago, the statement says that the university’s examination presentations were disrupted and the education system was put under siege. Students of all genders were beaten up, teachers were threatened and abused.

“This behaviour is highly condemnable and reprehensible, and should be taken up by the authorities and appropriately dealt with. In a country that boasts of a rich tradition of debate, of argument, of allowing for a conducive forum of ideas to be counter with ideas, it is shameful that these factions and groups resorted to threats, abuse and violence. This act is a grotesque violation of our peaceful performative traditions and one which promotes bullying and coercion.

“If there was anything objectionable to be found by any members in the audience in one of the several play presentations that were made that evening, those members should have waited for the examination performances to conclude before formally registering their objections with the university authorities by due formal process. It is unacceptable that these groups disregarded and flouted university examination rules.”

The entire statement may be read below:

Statement from Lalit Kala Kendra (Gurukul) alumni, art educators, visiting faculty and theatre/cine artistes

“We would like to begin by saying that despite our diverse ideological, cultural, social, religious and geographical backgrounds and identities, we write this note together as informed and sensitive artists, and citizens of India. We would like to strongly emphasise that we have great respect for all religions, castes, creeds, sects etc. We are proud of and value our rich Indian culture and traditions.

“Lalit Kala Kendra (Gurukul), also known as Centre for Performing Arts, is a department of the Savitribai Phule Pune University, offering graduate and postgraduate education in three broad streams- Dance, Music and Dramatics in the traditional Indian Gurukul system. All the courses conducted by Lalit Kala Kendra (Gurukul) are UGC approved. A number of distinguished artists in the performing arts such as Bharat Ratna Pandit Bhimsen Joshi, Padmashri Satish Alekar (who also served as the HOD until 2009), Pandita Rohini Bhate have been associated with this department. Many stalwarts also continue taking part in the department’s curriculum board. Some even provide necessary guidance to students from time to time.

“Over the years, Lalit Kala Kendra (Gurukul) has produced many distinguished alumni who continue to make very significant contributions to the field of theatre, music, dance, academics, television and cinema even today. We thus passionately believe that this department serves as an invaluable avenue in the world of the arts. Dr. Praveen Bhole has been very proactive as a theatre educator, scholar and practitioner for close to three decades. He has overseen the department for several years now and his insight in theatre is of the highest pedigree.

“Performing Arts are called Prayog Kala in Marathi. The word Prayog literally translates as ‘experiment’. Students of performing arts are expected to experiment with their art and craft- their body, voice, thoughts, opinions, understanding of art, aesthetics, etc. Drama students at Lalit Kala Kendra (Gurukul) engage in a variety of modules in their years at the department- scripted plays to improvisations, faculty/guest productions to student exercises, physical theatre to argumentative plays, folk forms to classics. It is a mixed bag rich with diversity of form and content, modernity and tradition, and has worked remarkably now for decades. Students are encouraged to try their hand at a variety of vocations and techniques in the process of discovering the artist within. That has been the beauty of Lalit Kala Kendra over the years. And it’s a rare beauty that needs to be preserved and supported!

“Lalit Kala Kendra (Gurukul) conducts written as well as practical examinations in accordance with the University rules. Every year, as a part of their curriculum, drama students stage plays on a wide variety of topics and genres as their practical examination presentations. We could say that during such examinations, the theatre stage itself serves as a question paper as well as an answer sheet. Internal and/or external examiners/experts are present for these presentations to evaluate the students’ performances. These performances are followed by viva voces which are also a part of the evaluation process.

“These presentations have never intended to insult any religion, caste, creed, sect etc or hurt anybody’s religious sentiment. Sanhita te Prayog (Script to Performance) is a crucial module in the drama curriculum, wherein students attempt to write and present their own 15 minute play, has been conducted since the late 1990s and hundreds of such student plays have been presented till date.

“We are united in strongly condemning the disruption, violence, damage and trauma that the department students, faculty, examiners and members of the audience faced from certain factions or groups that attended the Sanhita te Prayog exam on the evening of 2nd Feb, 2024 at Lalit Kala Kendra(Gurukul), SPPU.

“The university’s examination presentations were disrupted and the education system was put under siege. Students of all genders were beaten up, teachers were threatened and abused. This behaviour is highly condemnable and reprehensible, and should be taken up by the authorities and appropriately dealt with. In a country that boasts of a rich tradition of debate, of argument, of allowing for a conducive forum of ideas to be counter with ideas, it is shameful that these factions and groups resorted to threats, abuse and violence. This act is a grotesque violation of our peaceful performative traditions and one which promotes bullying and coercion.

“If there was anything objectionable to be found by any members in the audience in one of the several play presentations that were made that evening, those members should have waited for the examination performances to conclude before formally registering their objections with the university authorities by due formal process. It is unacceptable that these groups disregarded and flouted university examination rules.

“It is deeply hurtful that police complaints were registered against university students and HOD. It is also unfathomable that no cognisance of their pain and trauma was taken into consideration at the time, and no complaints from their side were entertained thereafter. The department, its students and HOD, who are in fact the real victims of this incident, are now being unfairly targeted, deliberately defamed and maligned with disinformation in circulated videos, publications and on social media, leading to severe misunderstandings about the institution and its students.

“We appeal to everyone to kindly stop this inappropriate slander and defamation. We also request that the university administration and the police provide adequate protection to all our faculty and students who are under severe distress and fear for their own safety and well being.

“The matter is now in the Honourable Courts of Justice and we appeal to all groups, organisations, students and artists to respect the Constitution of India and its system of law and order.

“We stand in solidarity with the students, HOD and faculty of Lalit Kala Kendra (Gurukul).

Jai Hind!”

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The post Alumni condemn violence and disruption at Lalit Kala Academy, stand in solidarity with students and faculty appeared first on SabrangIndia.

Children have spread the message of communal harmony and demonstrated that the spirit of plurality is still present in India in the midst of the current situation of hatred and religious divisiveness. Since the beginning of Ramadan, students of various faiths have been organizing Iftar for their Muslim friends in Bidar, Karnataka. On a daily basis, students at the Shaheen Group of institutions prepare plates of fruits, pakoras, and Rooh Afza, among other things. While the Muslim students break their fast, their non-Muslim classmates serve them food and beverages.

A Hindu student stated that they prepare Iftar for their Muslim friends every day. “We find peace by doing this, and we also want to be a part of Ramadan,” she said, adding that she is happy to see such an environment, as reported by MuslimMirror. The Iftar fosters a sense of community and friendship among students of various faiths, emphasizing the importance of mutual respect and understanding between people of different faiths and cultures.

Another student stated that she was experiencing Ramadan for the first time in her life. “I feel very fortunate to be able to spend time helping my Muslim friends with Iftar,” she said, adding that the atmosphere at the Iftar promotes unity, as per the MuslimMirror.

According to Dr. Abdul Qadeer, founder of the Shaheen Group of Institutions, up to 4500 people attend the Iftar every day.

“Every day, Muslim and non-Muslim students on our campus observe the Iftar; while Muslims break their fast, non-Muslim students serve them.” According to Qader, this sends out messages of peace and love. He expressed his hope that these students will contribute to the betterment of society and the nation.

Qader further stated that students promote mutual respect, understanding, and tolerance by observing iftar together, regardless of religious or cultural differences. Serving food and drinks to their Muslim classmates reinforces the idea of communal harmony and emphasizes the importance of empathy and kindness in creating a welcoming and inclusive environment, the MuslimMirror reported.

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In a horrific video that quickly went viral, Himank Bansal, a student at the ICFAI Business School in Dontanpally, Hyderabad was beaten and ragged by other students at the school and made to chant “Allahu Akbar” and “Jai Mata Di.”

The group of students are allegedly seen assaulting Bansal in the attack footage that was widely circulated on social media. In the video, the accused are heard allegedly threatening to beat him into a coma to “correct his ideology” after they allegedly forced him to shout religious slogans.

The videos can be watched here: 

The boy was assaulted bcz he is a Hindu pic.twitter.com/MtWW01VAXW

— ವಾಲಿ (@bhairav_hara) November 12, 2022

 The first-year student was stripped, abused, and forced to consume certain chemicals for making comments against the Prophet. The case was registered after Bansal approached the police complaining of being harassed by 15-20 individuals in his hostel room.

According to his account in the complaint, in a conversation with a female friend of his, he had made derogatory comments about Prophet Mohammad, which was allegedly then circulated by her to the accused; which is why they assaulted him.

In his complaint, given to police on November 11, Bansal stated that the incident occurred on November 1. According to the complaint, between 15 and 20 guys broke into his dorm room and attacked him while accusing him of hurting people’s religious feelings. He was physically assaulted and made to chant religious slogans while the attackers threatened him and his family. He claimed that he was being forced to remove his pants and that when he refused, he was made to consume chemicals. Bansal named many people in his complaint with respect to the assault. Bansal stated that he was also sexually assaulted, with one student trying to rip his clothes while others repeatedly punched him in the genitals.

The complaint may be read here:

The FIR, registered at Shankarpalli police station, has invoked charges under IPC Sections 307 (attempt to murder), 342 (wrongful confinement), 450 (trespassing), 323 (causing hurt) 506 (criminal intimidation), read with Section 4 of Telangana Prohibition of Ragging Act of 2011.

Post this video getting viral, hashtags such as #hindusunderattack and #jagohindu started trending on twitter.

On November 14, Cyberabad Police informed that the eight accused in this case have been arrested and sent to police custody. Legal action has been initiated against nine members of the college management for the incident, police said, as per MSN.

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Image Courtesy:hindustantimes.com

The Supreme Court upheld the bail of two Kerala students under the stringent Unlawful Activities (Prevention) Act (UAPA) while observing that mere association or support given to a terrorist organisation does not attract the stringent provisions of UAPA. The bench of Justices Ajay Rastogi and Abhay Oka held that while considering bail under UAPA, the court need not conduct a mini trial and only appreciate the material based on which the chargesheet was filed.

The accused were charged for having Maoist links as they possessed certain materials relating to the programmes of CPI (Maoist). The court observed that the students are of formative age and might have been fascinated by what is propagated by CPI (Maoist).

Thwaha Fasal’s bail was cancelled by the Kerala High Court, leading him to move Supreme Court. Meanwhile, Allen Shuhaib’s bail was challenged by the National Investigation Agency (NIA) before the same bench. The bench of Justices Ajay Rastogi and Abhay Sreeniwas Oka restored Fasal’s bail and upheld the bail granted to Shuaib.

Background

On September 9, 2020, a special NIA court in Kochi granted bail to Allan Shuaib (20) and Thwaha Fasal (24) who were detained since November 2019. They were arrested on the grounds that they were in possession of documents supporting CPI (Maoist), attended meetings of CPI (Maoist), prepared cloth banners supporting secession of Kashmir from India. The two boys were apprehended by the police from a roadside, on November 1, 2019 as they found them to be suspicious, and they found some material in their bags on the basis of which they were charged under the stringent sections of UAPA. These materials included some documents, some books, a notepad with “code language” as well as two books titled “Caste Issues in India” and “Organizational democracy – disagreement with Lenin”.

The special NIA court had observed that the object of detention pending criminal proceedings is not punishment, and that the law favours allowance of bail, which is the rule, and refusal of it is an exception. The court observed that while it has to act in accordance with section 43D of UAPA while granting bail it also has “equal responsibility to see that human rights are not violated in the process of combating terrorism.”

The Kerala High Court, on the other hand, concurred with the ASG’s submissions that the special judge failed to notice the cumulative effect of the documents and materials seized from the possession of the respondents (accused). The court perused the material seized from the respondents and held that some of those materials are not innocent and innocuous which could be ignored in a light-hearted manner. The court was convinced that the Special court judge oversimplified matters and watered down the seriousness of documents seized from the respondents while granting bail. The court then considered that Shuaib was only 20 years old and suffered from some psychiatric issues and hence did not interfere with his bail but cancelled the bail granted to Fasal. 

Arguments

The counsel for Fasal (accused no.2), Jayanth Muthuraj argued that while granting bail, the Special Court had concluded that the chargesheet does not make out a prima facie case of the accused having intention to encourage, further, promote or facilitate the commission of terrorist activities. He also relied upon Union of India v. K.A. Najeeb (2021) 3 SCC 713 to submit that the statutory embargo imposed by sub-section (5) of Section 43D of the 1967 Act does not oust the jurisdiction of a Constitutional Court to grant bail on the ground of violation of rights.

He pointed out that after his bail was cancelled by Kerala High Court, Fasal surrendered immediately and has been in custody for more than 572 days and charges have not been framed by the Special Court.

S.V. Raju, the Additional Solicitor General (ASG) opposed the appeal and argued that two red colour handmade cloth banners of CPI (Maoist) were recovered from Fasal’s  residence calling upon people to support the struggle for independence of Kashmir which amounts to inciting rebellion. He pointed out that soft copies of a number of volumes of news bulletins of CPI (Maoist) and party programmes were recovered from the digital device. He submitted that all the material indicates that both accused are intimately connected with CPI (Maoist)

Court’s findings

The court analysed the charges invoked against the accused. The main pointers are as follows:

• Section 20 is not attracted unless the terrorist gang or terrorist organisation of which the accused is a member is involved in terrorist act as defined by Section 15
• If the accused is associated with a terrorist organisation, the offence punishable under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organization with intention to further its activities The association must be with intention to further the activities of a terrorist organisation
• The offences punishable under clauses (a), (b) and (c) of sub-section (1) of Section 39 are attracted only when the actions incorporated therein are done with intention to further the activities of a terrorist organization and must have connection with terrorist act.

The court held that even if an accused allegedly supports a terrorist organisation by committing acts referred in clauses (a) to (c) of subsection (1) of Section 39, he cannot be held guilty of the offence punishable under Section 39 if it is not established that the acts of support are done with intention to further the activities of a terrorist organisation.

Thus, intention to further activities of a terrorist organisation is an essential ingredient of the offences punishable under Sections 38 and 39 of UAPA.

The court further held that since section 13 (punishment for unlawful activities) does not come under Chapter IV or VI of UAPA, stringent provisions of sub-section (5) of Section 43D do not apply. Fasal was charged with section 13 for the banners that were found in his house.

The court considered the provisions of section 43D(5) and held that after perusing the chargesheet, if the court is unable to draw out reasonable grounds for believing that the accusation against such person is prima facie true, the embargo created by the proviso will not apply.

“If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail.” 

The court stressed that the grounds for establishing prima facie case against the accused have to be “reasonable”. The court cautioned that the court ought not to conduct a mini trial and neither is it supposed to examine the merits and demerits of the evidence. However, if a chargesheet is filed, the Court has to examine the material forming a part of the chargesheet to determine reasonable grounds.

The court, after perusing the chargesheet and the material it was based, held that it establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation.

However, the court said, “Mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39.” Further, the association and the support have to be with the intention of furthering the activities of a terrorist organisation which may be inferred from overt acts of active participation.

“At formative young age, the accused nos.1 and 2 might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form.”

The court said that apart from some photos showing that they were part of a gathering, there is nothing to show active participation in CPI (Maoist). The court also stated that their constant association or support of the organization for a long period of time is also not apparent from the chargesheet.

Trial court vis-à-vis high court

The high court had held that the trial court had oversimplified the matter while granting bail. The Supreme Court however, opined that the high court failed to note that the special court had examined all material and recorded prima facie findings to conclude that there was no intention on the part of the accused to further the activities of CPI (Maoist).

The court thus dismissed the appeal filed by the government against the bail granted to Allen Shuhaib and set aside the Kerala High Court order cancelling the bail granted to Fasal.

The complete judgement may be read here:

Related:

 Why is Gulfisha Fatima still behind bars?
Terror Laws under a Proto-Fascist Regime
UAPA must go – lock, stock and barrel: Senior Counsel Mihir Desai

The post Mere association or support not sufficient for UAPA charge: SC appeared first on SabrangIndia.

Jammu and Kashmir Police have reportedly registered cases under the Unlawful Activities (Prevention) Act (UAPA) against students of medical colleges who “celebrated” Pakistan’s cricket win over India in the T20 World Cup match that was held on Sunday evening in Dubai.

Soon after the win online trolling targeting Muslims, including Mohammad Shami, the only Muslim player in the indian team, had started. Reports also came in from Punjab, where police had to reach the Bhai Gurdas Institute of Engineering and Technology campus after several Kashmiri students were allegedly assaulted there, soon after the match ended. The college is located in Punjab’s Sangrur area.

Now the students, Hostel wardens and management of the Government Medical College in Karan Nagar, and the Sher E Kashmir Institute of Medical Sciences in Soura of Srinagar district, have also been booked under the anti-terror UAPA law, according to a News18 report. Kashmir Inspector General of Police Vijay Kumar told the media that they “filed a first information report against the medical students.” The FIR also reportedly includes charges under Section 505 (statements conducing to public mischief) of the Indian Penal Code against the students at the Government Medical College hostel “who were crying and dancing” after Pakistan won the match. However, it has been reported that the accused persons have been identified yet. News reports quoted an officer of J&K Police saying, “The FIRs have been registered in Soura and Karan Nagar Police Stations of Srinagar city under sections 13 of Unlawful Activities (Prevention) Act and 505 of the Indian Penal Code. Our probe is currently underway. We will set an example through this case.”

According to News18, police officials said they were looking into purported videos of the incident, however, “many of the videos that have surfaced are from 2017.”  Multiple videos reportedly from the Government Medical College (GMC) and Sher E Kashmir Institute of Medical Sciences (SKIMS) in Srinagar had gone viral in which some students are heard chanting pro Pakistan slogans. It is noteworthy that Union Home Minister Amit Shah was on his three-day visit to Jammu & Kashmir, at that time, his first visit after the abrogation of Article 370.

Meanwhile, in Rajasthan, a teacher identified as Nafeesa Attari,who reportedly expressed her “joy over Pakistan’s T20 win against India,” has been expelled by Neerja Modi School, the private school where she worked. The teacher, who had reportedly put up a WhatsApp status “We wonnn” along with pictures of Pakistani players. According to news reports a parent asked the teacher whether she supported Pakistan, and she  replied ‘Yes’. Soon screenshots of the teacher’s WhatsApp status spread, and the school management expelled her.

This follows the online trolling targeting Muslims, including Mohammad Shami, the only Muslim player in the Indian team started. Even after Sachin Tendulkar himself spoke out in support of Shami, the trolls have continued spreading hate.

When we support #TeamIndia, we support every person who represents Team India. @MdShami11 is a committed, world-class bowler. He had an off day like any other sportsperson can have.

I stand behind Shami & Team India.

— Sachin Tendulkar (@sachin_rt) October 25, 2021

Twitter influencers fanning the communal fires included former cricket Virender Sehwag, now a businessman whose dog whistle claimed and taunted that “in parts of India there were firecrackers to celebrate Pakistan ‘s victory.” 

Firecrackers are banned during Diwali but yesterday in parts of India there were firecrackers to celebrate Pakistan ‘s victory. Achha they must have been celebrating victory of cricket. Toh , what’s the harm in fireworks on Diwali. Hypocrisy kyun ,Saara gyaan tab hi yaad aata hai

— Virender Sehwag (@virendersehwag) October 25, 2021

Related:

Kashmiri students allegedly attacked after Pak defeats India in cricket match
Will no one from Team India speak up for Mohammad Shami?
Aamir Khan: Surviving in the regime’s crosshairs
BJP MP says Aamir Khan’s CEAT Tyres Diwali ad hurts Hindu sentiments
Jashn-e-trolling: What does the festive season mean for bhakts?

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Students condemning Lakhimpur Kheri killings in solidarity with India’s protesting farmers have reported severe mistreatment by police officials over the last week. While on October 10, 2021 Delhi students claimed physical abuse by police, as many as five Varanasi students now face FIR charges.

On Sunday, All India Students’ Association (AISA) students protested outside Union Home Minister Amit Shah’s house. They demanded the immediate dismissal of Minister of State for Home Affairs Ajay Mishra, whose son is the main accused in the killing of four farmers and journalist Raman Kashyap.

Students said Delhi police abused and detained students as soon as protesters arrived outside Shah’s residence. AISA officials said that they were severely beaten and women protesters were injured and harassed. Around 15 to 20 people were taken to the Mandir Marg police station in three buses. Members alleged that women constables in one of the buses ferrying women protesters continued to beat and harass students.

Inside the police station, AISA Delhi Secretary Neha said, “While a Union Minister, whose son has massacred farmers, still remains in power, the government has sought to unleash terror on students and people’s movements. Despite whatever violence police inflict on us, our demand for expulsion of Ajay Mishra stands strong.”

Students were later released at 6 PM after police filed FIRs against them all.

#SOSDelhi
Students protesting lakhimpur massacre at Home minister’s house have been Brutally detained and 3 female Comrades have been detained separately and are being subjected to physical Violence and sexual harrasment!
We are being taken to Mandir Marg station ! pic.twitter.com/Yn1zpdy9jU

— AISA – Delhi University (@aisa_du) October 10, 2021

In Varanasi, Prime Minister Narendra Modi’s own constituency, five Banaras Hindu University (BHU) students faced FIR charges for protesting in solidarity with Lakhimpur Kheri farmers outside the Malviya entrance gate  on October 4. 

Shortly after the Sunday incident, the Samyukta Kisan Morcha (SKM) called for nationwide demonstrations. People from various sections of society came forward to condemn the event. This included around 8 to 10 BHU students including Nitish Kumar, Aakanksha Azad, Bhuval Yadav, Raj Abhishek Singh and one unknown individual.

Protesters reiterated the demand for Mishra’s dismissal from his ministerial position as Minister of State for Home Affairs to ensure a fair trial against all those accused in the case. In response, the Varanasi police lodged FIRs against the five aforementioned students for not wearing masks, and blocking roads without seeking police permission.

While none of the charged have been arrested so far, student organisations have condemned the local police for filing FIRs against peacefully protesting students. Socialist People’s Council General Secretary Aflatoon appealed to the police to withdraw the charges against the students.

Meanwhile, Uttar Pradesh police have barricaded roads leading to Lakhimpur Kheri. Organisations like the All India Kisan Mazdoor Sangathan (AIKMS) reported that leaders were illegally detained in Bara, Prayagraj district to prevent grassroot-level protests.

“Reports indicate that the state government is deploying police and paramilitary forces in anticipation of farmers’ protests as per the SKM’s call of action,” said SKM leaders in a joint statement. SKM has called for prayer meetings at the ground-level in memory of martyred farmers. Citizens who cannot leave their house are requested to light five candles for the Lakhimpur Kheri deaths.

Related:

Maharashtra Bandh: Traffic halts as protesters pay respects to farmer martyrs
Lakhimpur Kheri: Accused Ashish Mishra arrested on Saturday
Lakhimpur Kheri farmer deaths: SKM announces a slew of protests from Oct 12
Lakhimpur Kheri: How does a journalist’s death not make it to the headlines?

The post After farmers, now protesting students face police brutality appeared first on SabrangIndia.

A few days after Jadavpur University pro-VC, Chiranjeeb Bhattacharya, and a few senior teachers of the engineering and technology faculty, including three deans were allegedly ‘gheraoed’ by student leaders who were demanding restructuring the Jadavpur University Management System (JUMS), and the discussions on the issue yielded no results the vice-chancellor has threatened to quit. According to a report in The Telegraph, the JUMS is used to publish results online, and it has faced complaints of errors. The students have been protesting on the issue for a few weeks now, leading to the alleged gherao, alleged confinement of teachers, and then the lengthy discussions.

However, with no breakthrough, the Jadavpur University vice-chancellor Suranjan Das reportedly told the teachers on Wednesday night, that he will quit his post, The Telegraph  reported that this announcement followed yet another round of alleged confinement of the  teachers by students. The report quoted the VC saying:  “In such circumstances, myself and my two Pro-VCs feel that we should not continue to remain in the office.”

According to the VC, the pro-VC and others had agreed to an in-person meeting after the student leaders promised that they won’t resort to confinement, “but what followed was a complete breach of trust.” However Aritra Majumder, chairperson, engineering and technology students’ union, has maintained that “nobody has been confined” adding that the JU authorities were “not listening to our grievances.”

This friction between students and teachers had started when the Faculty of Engineering and Technology Students’ Union (Fetsu) led agitations on December 9 and 11 over alleged anomalies in the management system, reported The Telegraph. Then on December 11, at a meeting of the JUMS Restructuring Committee, a section of students, “including, most unfortunately, some who were themselves members of the Committee, prevented other members of the Committee (teachers and officials), from leaving the meeting even after discussions had been concluded”, stated the news report, adding that the teachers were detained till 1.30am. In the news report dated December 16, it quoted teachers at Jadavpur University asking that they be allowed to return home,  “just as students have the right to agitate for their demands, teachers too have the right to return home after meetings,” said the teachers who alleged they were detained for hours “in this pandemic situation”. They warned that this, “can have severe, if not fatal, consequences”.

The Jadavpur University Teachers’ Association (Juta) has flagged the points in a letter to vice-chancellor Suranjan Das, stated the news report, days after teachers and officials were gheraoed by the students’ union of the engineering faculty over alleged lapses in the online Jadavpur University Management System (JUMS). The JUTA wrote that, “staying inside a confined space for nearly twelve hours in this pandemic situation can have severe, if not fatal, consequences, especially for those who suffer from various ailments, as many teachers and officials do.”

The VC had not commented on the issue then, however the students’ leader Aritra Majumder, had reportedly said that “Corona is not the sole crisis. We are of the view that demands regarding the results are of immediate concern to us…. Realising the importance of the demands being raised by the students, we would suggest the teachers rethink their stand.”

The JUTA, added the report had also issued a statement on November 25 where it blamed students for the resignation of two acting deans of science over the past couple of months, alleging “harassment and humiliation a section of teachers was subjected to by some students in the science faculty.”

Related:

Tagore & BJP can’t go together: Students protest Amit Shah’s Visit to Visva-Bharati
Bengal BJP chief unfazed by 2 FIRs

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