On May 26, 2022, the Delhi High Court asked Jawaharlal Nehru University (JNU) student Sharjeel Imam to approach the Trial Court in order to seek interim bail in connection with FIR 22/2020 pertaining to the sedition case registered against him for his allegedly provocative speeches against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC).

A bench comprising Justices Mukta Gupta and Mini Pushkarna granted him the liberty to seek bail in view of the recent Supreme Court order which directed to keep in abeyance, the sedition law (IPC Section 124-A) until the Union Government reconsiders the provision.

However, the reason why the bench disposed of the interim bail application was due to the preliminary objection raised by Special Public Prosecutor Amit Prasad with respect to the maintainability of the interim bail application before the High Court. Prasad reportedly submitted that according to a 2014 Supreme Court ruling, the bail application has to be moved in the first instance before the Special Court and if aggrieved, an appeal would thereafter lie before the High Court.

Advocate Tanveer Ahmed Mir had argued that the allegations in the appeal relates to the offence of sedition essentially and thus his case would be covered by the Supreme Court order, reported LiveLaw.

Brief background of cases against Sharjeel Imam

Sharjeel Imam was arrested by the Delhi police on January 28, 2020 from his home village in Bihar, after the police in five states, Delhi, Uttar Pradesh, Assam, Arunachal Pradesh and Manipur reportedly filed cases under sedition and terrorism in seven First Information Report (FIRs) against him. He is currently lodged in Tihar, New Delhi.

In 2021, Sharjeel Imam had filed an application for a regular bail plea in connection with FIR No. 242/2019 which has alleged that he delivered provocative speeches in 2019 which led to Delhi Riots at various places observing that the tone and tenor of the incendiary speech tend to have a debilitating effect upon public tranquillity, peace and harmony of the society.

FIR 242/2019 was registered under Section 143/147/148/149/186/353/332/333/307/308/435/427/323/341/120B/34 IPC, u/s 3/4 Prevention of Damage to Public Property Act & u/s 25/27 Arms Act.

This bail was dismissed by Additional Sessions Judge Anuj Agrawal on October 22, 2021, even though the Court had reportedly observed that the evidence against Imam was “scanty and sketchy” to take a prima facie view that his speeches incited riots. It denied him bail noting that further examination was needed to ascertain if the speech amounted to the offence of sedition under Section 124A IPC and promotion of communal disharmony under Section 153A IPC, reported LiveLaw.

Interestingly, on November 27, 2021, the Allahabad High Court granted bail to Sharjeel Imam in connection with FIR No. 50/2020 (a sedition case registered against him in Aligarh) for allegedly delivering an ‘anti-national speech’ at the Aligarh Muslim University (AMU) during Anti CAA-NRC protests.

FIR 50/2020 was registered under Sections 124A, 153A, 153B and 505(2) I.P.C

While granting him bail, the Bench of Justice Saumitra Dayal Singh noted “Neither he called anyone to bear arms nor any violence was incited as a result of the speech delivered by him.”

The same year, Imam had also filed a bail application in connection with FIR No. 22/2020 (with respect to the speeches made by him in Aligarh Muslim University and Jamia area in Delhi) before the Delhi Court. FIR 22/2020 was registered by the Delhi Police under sec. 124A, 153A, 505 of the Indian Penal Code along with sec. 13 of the Unlawful Activities (Prevention) Act (UAPA), which was added later. However, the said regular bail plea was dismissed by Additional Sessions Judge Amitabh Rawat on January 24, 2022.

On April 28, 2022, Sharjeel Imam moved the Delhi High Court challenging a Trial Court order which had dismissed the bail plea in connection with FIR No. 59/2020 (a case alleging larger conspiracy into the Delhi riots of 2020) involving charges under Indian Penal Code and UAPA. However, on May 6, a division bench comprising Justice Siddharth Mridul and Justice Rajnish Bhatnagar further adjourned hearings listing the matter to be heard on May 26. The Bench had adjourned the matter on the grounds that it would be appropriate to await the outcome of the Supreme Court regarding the challenge to the constitutional validity of the offence of ‘Sedition’ under Section 124A of the Indian Penal Code before continuing with the present appeals.

During this hearing, the Court had decided to hear another challenge made by Imam seeking bail in connection with FIR 22/2020, a case relating to the alleged inflammatory speeches made by him at the Aligarh Muslim University (AMU) and Jamia area in Delhi against the Citizen Amendment Act (CAA).

During the course of the hearing, Advocate Tanveer Ahmed Mir appearing for Sharjeel Imam, relied on an order passed by the Allahabad HC granting bail in a case concerning one of the speeches forming part of the FIR in question. Accordingly, Justice Mridul reportedly said, “If you’re saying that order passed by Allahabad HC granting you bail, if you’re pressing that, and you say it covers the present appeal, then you have to show us how and what were the allegations in the FIR?”

Today, after directing Imam to approach the lower court to seek interim bail in connection with the sedition case registered under FIR no. 22/2020, the Court has listed the pending appeals challenging the order denying Imam bail as well as framing charges against him in the matter on August 26, reportedly LiveLaw.

There are three more FIRs registered against Imam:

Related:

“You’re asking us to conduct a re-trial. We can’t test the veracity of the statement at the stage of bail”: Delhi HC on Umar Khalid’s bail plea
Delhi HC adjourns hearings in bail pleas of Umar Khalid and Sharjeel Imam
Delhi HC reserves order on Sharjeel Imam’s plea against trial court order denying default bail
Sharjeel Imam accuses Delhi Police of hollow arguments, says government criticism important
Sharjeel Imam tried to create complete anarchy: Gov’t tells Delhi court
Never-the-less, they persisted: Human Rights Heroes of 2021
Delhi violence: What is happening in case involving the conspiracy FIR under UAPA?
Tenets of free and fair trial are sacrosanct: Delhi court on media leak of chargesheet in violence case

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Though this is certainly not the first time we have seen such a reluctance to punish those guilty of brute crimes, what makes this denial of justice starker, is the prevalent political and social environment, conducive to mob violence that surrounds us. India has seen a spiral in cases of lynchings over the past six years. Many of those who have been mercilessly attacked by ‘the mob’ –that enjoys undoubted political patronage if not outright sanction—have been Muslim cattle traders, several have also been Dalits or belonged to other marginalised sections. On test then is how insulated are our institutions of justice from this pervasive mob psyche.

Indian courts have in the past, in rare moments of judicial vindication transferred cases, stepped in to ensure the integrity of the investigation, questioned the lapses in the prosecution and most crucial of all, actually used the expanse of powers for re-investigation and further investigation given to the trial court under existing Indian criminal law.

Epic pronouncements by the Supreme Court, have ensured a crucial intervention, pointing out the role of the trial court when faced with gross public crimes, made worse by a deliberately botched-up investigation and weak kneed prosecution. Tragically, the absence of a systemised institutional memory within even our courts (higher courts down to trial courts) has reduced these significant pronouncements to glimmers of hope within the broader normal of a low conviction rate coupled with a dulled and hollowed out jurisprudence.

Six of the accused named by Pehlu Khan in his dying declaration (Om Yadav, Hukum Chand Yadav, Sudhir Yadav, Jagmal Yadav, Naveen Sharma and Rahul Saini) were actually dropped as accused when the CBI Crime Branch was brought in to head the investigation. Efforts to arraign them as accused through a Section 319 of the Criminal Procedure Code (CRPC), before the same trial court that finally acquitted the six other accused, were rejected by the judge. The application under section 319 was argued over two days by advocates for the family of the deceased in July 2019.

While the judge has commented on the fact that the Rajasthan crime branch did not produce either the video or the phone on which it was shot before the court, or even get these analysed in a forensic laboratory, the court itself, did little to nudge the prosecution agency into covering the lapses in the probe as the CRPC empowers the courts to do. If the investigation was so shoddy, what should have been the role of the trial court that has been hearing the case for over two years?

The court, in its judgement, even pulls up the police for a delay in the registration of the FIR in the case and comments on the “serious negligence” on part of the investigating officer. However, these officers escape any legal consequences of this gross dereliction in duty. In fact, they are not punished by the court at all. It is not as if the court of Judge Sarita Swamy not made copious note of the weak charge sheet. She observes, “This way, in this case, according to the prosecution, the accused were identified on the basis of two videos of the incident shot on mobile. But surprisingly, the video cited by Ramesh Sinsinwar and the photographs prepared from it was not taken on record and neither was the mobile which contained the video, confiscated,” noted the court in its judgment.

Sinsinwar was the then SHO of Behror police station in Alwar district, and the first investigating officer in the case. In his statement to the court, Sinsinwar said that he had received one of the videos from an informant, but accepted that he hadn’t sent the video to the forensic science laboratory (FSL). He also accepted that he didn’t get a certificate from a nodal officer for the call details of the accused, nor were they verified from anyone. He told the court that he didn’t take any documents such as bills and SIM IDs from the accused which could show that the accused were the owners of the mobiles, and the phones were also not confiscated. But did the court in any way use its power under criminal law, to punish the SHO for this lapses that show a wilful even criminal negligence? Observations apart, the judge has done little to ensure that officers like Sinsinwar do not get away with such criminal negligence in the future.

Sections in the Criminal Procedure Code, section 311 with 165 of the Evidence Act give powers to the presiding judge to summon witnesses, and pro-actively intervene during trial. Section 173(8) empowers the court to ensure that the agencies investigating the case leave no stones unturned to tie up the loose knots in criminal cases.

 “..In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
Karnel Singh v. State of M.P. (1995 (5) SCC 518.

The lapse or omission is committed by the investigation agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of the Courts getting at the truth by having recourse to Section 311, 391 of the Code and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence;

…It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process.
Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126

Justice has no favourite, except truth. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.
Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble: (2003) 7 SCC 749.
 
In the especially the famed Zahira Shaikh case, Zahira Habibulla Sheikh v.s State of Gujarat, (2004) 3 SCC has made several serious observations on the role of the Trial Court:
“ ..Discovery, vindication and establishment of truth are the main purposes underlying existence of courts of justice;…
“In a criminal case the fate of the proceedings cannot   always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice – often referred to as the duty to vindicate and uphold the ‘majesty of the law’”…….
 

“..The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court
If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a more recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves.  Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
( Zahira Habibulla Sheikh v.s State  of  Gujarat,  (2004) 3 SCC 158)
 
The failure of the court lies in presiding over this sham of a prosecution and investigation, and in fact functioning as merely as a silent spectator.

The post Pehlu Khan Murder: Courts on trial, where is the substantive justice? appeared first on SabrangIndia.

Emotions were high as were the resoluteness of all of gathered at 9 a.m. to recall that awful day, a year ago when Comrade Pansare was shot at. Over 500 activists and students assembled along with Umatai Pansare, the rest of the surviving family and myself at 9 a.m. this morning. We met in remembrance and struggle.

The march then proceeded to Bindu chowk with revolutionary songs being sung along the way. Umatai Pansare and others garlanded the statues of Dr Babasaheb Ambedkar and Jotiba Phule.

“The long march to justice and equality that was severely jolted with the killing of Mahatma Gandhi, and then again with the shooting of Comrade Govind Pansare, a year ago will continue till the ideology that kills is rooted out,” Bhai ND Patil said here today while talking to the media.

Severely criticising the lack of political will of the present Maharashtra government in getting to the bottom of the conspiracy that killed Govind Pansare, ND Patil said, “the present government does not have the will to nab the killers.”

Finally the gathering that had by now grown to over one thousand met at the Prince Shivaji Maratha Boarding College, Govind Pansare’s alma mater. The elderly principal of the Prince Shivaji Maratha Boarding College, DB Patil, who was a long time colleague of Comrade Pansare was emotional in his recollections. Over one thousand students of the school and college participated in the remembrances.

Image: Megha Pansare

It is the slow pace of the struggle for justice that is enervating and draining. The Bombay High Court, even at the last hearing of the case, used harsh words, calling the attitude of the government and the investigating agencies “a miscarriage of justice.” Yet the matter drags on. Sameer Gaikwad, the sole man arrested, who is still in jail has approached the High Court for a transfer of the trial out of Kolhapur. We, on the other hand, have asked the High Court to direct that the Special Investigation Team (SIT) appointed in this case (with its chief in Pune, one investigating officer in Pune, another in Kolhapur) be directed to only deal with this case and not with all and sundry other responsibilities. This prayer is yet to be heard out.

Meanwhile, in the trial court, the bail for Gaikwad has been rejected at the last hearing. I (Megha Pansare on behalf of the family) have made an application for the Ballistic Report to be sent to Scotland Yard. (There were reports of the similarity of source and kind in the bullets used to kill Dabholkar, Pansare and Kalburghi). The accused on the other hand has asked to be released from his isolation cell. The judge in the trial court at the last hearing has asked for a report from the jailer on the matter of Gaikwad’s state of mental health.

Image: Megha Pansare
 

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