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Mainstream, VOL 62 No 8 February 24, 2024

Bail not jail is a privilege only for the select few | Faraz Ahmad

Saturday 24 February 2024, by Faraz Ahmad


The Supreme Court on February 12 granted indefinite extension to the interim bail granted much earlier to Ashish Mishra the son of Union minister Ajay Kumar Mishra in the 2021 Lakhimpur Kheri violence which claimed eight lives.

A bench of Justices Surya Kant and K V Viswanathan confirmed interim bail last in September, 2023 to Ashish Mishra charged with the murder of a group of farmers in Lakhimpur Kheri on October 3, 2021

This group was walking down the road to register its protest at a BJP rally in Union Minister Ajay Mishra’s constituency, Lakhimpur-Kheri to reiterate BJP government’s opposition to farmers’ nationwide protest and their dharna outside Delhi borders. when a motorcade led by son Ashish in a SUV mowed down the peaceful farmers, killing four of them and injuring a few more. The farmers then stopped the motorcade, dragged out a driver, while Ashish, who might have been at the steering wheel, fled in the melee and the angry crowd killed the driver and some others. Among those run over and killed on the spot was also a local journalist.

Finally, the accused, all in that motorcade to welcome UP Deputy chief minister Keshav Prasad Maurya, included another former minister’s son, were rounded up a couple of days later when the scandal hit headlines all over the country. But after a brief internment all of them have mostly been on bail.

It took the UP Police a week to gather courage to arrest Ashish Mishra but within no time he and his seven associates were granted bail by the Lucknow bench of Allahabad High Court forcing the victims to knock on the doors of the Supreme Court which set up a Special Investigative Team (SIT) and following the report of the SIT into this crime, the apex court and following the same course Allahabad High Court which had in between denied bail to Ashish Mishra in July 2022 too bailed out all eight accused yet again.

On September 26 last year, the Supreme Court even relaxed Mishra’s bail conditions allowing him to stay in the National Capital Region (NCR), presumably in his father’s official bungalow ostensibly to look after his ailing mother, the minister’s wife and supervise the treatment of his daughter.

Just four days earlier the bench of Justices M.M. Sundresh and Aravind Kumar, of the apex court had denied bail to a man accused of promoting the Khalistani movement, stating that mere delay of trial is not adequate grounds to grant bail. Presumably the Delhi High Court has followed the same principle in denying bail to the Editor-in-chief of news portal Prabir Purkayastha.

On February 16 Justice Swarna Kanta Sharma issued a notice to the Delhi Police on Prabir plea challenging the First Information Report (FIR), seeking Delhi Police stand on this..

Iin his petition Prabir questioned the FIR in respect of UAPA concerning terrorist activities. The Delhi Police had earlier opposed Prabir’s interim bail plea on medical grounds, and the court upheld it. It now resisted even the court’s notice on Prabir’s petition questioning the very allegation of terrorist activity, for obviously it was unwilling to state anything on record. . But Justice Sharma pleaded denied the Police this privilege saying that without the Police’s statement on record, she cannot proceed any further in this case but deferred the matter to July this year. Hence whatever the Delhi Police may say Prabir shall suffer in jail at least for the next five months and more likely much longer. By the time the Delhi High Court decides either way on this at least a year would pass with the accused in jail.

Newsclick’s independent journalism seems to have become an eyesore for this Government and thus it has been the target of a series of actions by various Government agencies since 2021. Its offices and residences of officials have been raided by the Enforcement Directorate, the Economic Offences Wing of Delhi Police and the Income Tax Department” earlier too but the initial attempts failed to cow down Newsclick from pursuing independent journalism. So now fresh bid to straight away label a well- known dissenting journalist with impeccable personal integrity, a terrorist simply to ensure that he is detained indefinitely in prison and thus silence the Newsclick media. Its an open and shut case for any intelligent unbiased observer but apparently not for our courts.

On, 11 December, last year, the Supreme Court, adjourned the pleas by Prabir and Newsclick Human Resources Head Amit Chakraborty, a physically challenged individual walking only with the help of external aid, challenging their recent arrest. A bench of justices B.R. Gavai, P.S. Narasimha and Prashant Kumar Mishra hearing the special leave petitions (SLPs) challenging the Delhi High Court upholding Delhi Police charge of slapping the anti-terror Unlawful Activities (Prevention) Act (UAPA) on them alleging that the news portal received Chinese funding to promote anti-national sentiments and news.

Appearing for Purkayastha, senior advocate Kapil Sibal questioned the legality of the arrest and pointed out that it was not tenable to charge Purkayastha of allegedly committing offences under Sections 13, 16, 17, 18, and 22 of the UAPA, in addition to the charges under Sections 153A and 120B of the Indian Penal Code that were levelled against him.

“Even if you accept everything, no offence is made out under the UAPA,” argued Sibal adding that in the Pankaj Bansal case the Supreme Court had quashed his arrest by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act (PMLA), because the grounds for arrest were not provided in writing to the person being arrested.

Sibal’s request for interim bail for his client, on grounds of his advanced age and medical conditions, was rejected by the apex court, when the Government counsel opposed it claiming that Purkayastha was an "extended limb of Chinese espionage".

This drew Sibal’s ire, with him responding, "Because the Chinese have allegedly invested in the company, they are being proceeded against under the UAPA. The Chinese have also invested in public authorities. Should UAPA charges be initiated against them? How can he say these things?”

Justice Mishra intervened to defend the prosecution lawyer bringing up the allegation regarding Chinese funding and espionage. “It is there in the allegations. The facts of the case cannot be totally ignored. How can we say that you can’t mention it?” said Mishra.

Sibal then said he would argue on the merits of the case. "If you want me to argue on merits, I will. An intervention of this nature is very unfortunate in response to a medical bail plea," said Sibal. "The man is 75 years old; he has had multiple episodes while in jail. He is an asthma patient."

The prosecutor claimed it had become a ’fashion’ for everyone to claim illness and get bail, and added that Purkayastha would get the best medical facilities while in jail.

Countering him, Sibal pointed out that Purkayastha was not even medically examined once in jail. "Impose whatever conditions you want. What is the problem caused if he is released on bail?" said Sibal.

So the medical plea of mother being sick is sufficient reason for the same apex court to not just grant bail but to relax the bail conditions for Ashish Mishra, the son of Union Minister of State for Home Ajay Mishra, despite a SIT probed charge of wilfully murdering not one but many more by mowing them down by his motor vehicle. In the eyes of this Government and presumably also in the eyes of the court Prabir has committed graver offence, not yet probed than Ashish Mishra. So the crime of an independent dissenting journalism is greater than the alleged mass murder by an influential minister’s son?

Manish Sisodia case

Former Deputy Chief Minister of Delhi Manish Sisodia has been in jail for a year now on charges of money laundering by the Enforcement Directorate (ED). On February 16 a Delhi court granted him three-day interim bail to attend his niece’s wedding in Lucknow, with very strict bail conditions. Earlier once he was allowed a few hours respite to visit in hospital his wife, suffering from severe medical condition. His ‘crime’ too appears more heinous in the eyes of the law enforcing agencies and the courts than the charges against Ashish Mishra?

Similarly, Sanjay Singh, the Aam Aadmi Party (AAP) Rajya Sabha member who had held several press conferences raising issue of questionable conduct of Modi government in respect of granting favours to billionaire Gautam Adani, was arrested by the ED a day after the Delhi Police raided Newsclick and arrested Prabir. After he was re-elected to Rajya Sabha the court granted Sanjay Singh permission to go to Parliament to take the oath of office again under very severe conditions. The Rajya Sabha secretariat however refused to grant this elected member the minimum courtesy expected towards an elected member of Parliament and Sanjay Singh returned disappointed. Perhaps they are expecting that if he is not allowed to take oath for six moths from the date of election his membership may be cancelled.

On February 7 Justice Swarna Kanta Sharma of Delhi High Court denied bail to Sanjay Singh holding that no ground for grant of bail was made out in this case.. But on Sanjay Singh later, except that in the eyes of the law giving body, Parliament and the higher courts Sanjay Singh seems to have committed a blasphemy by repeatedly exposing alleged Adani-Modi nexus.

Let’s return to Manish Sisodia case. On October 4, 2023, a Supreme Court bench led by Justice Sanjeev Khanna, hearing Manish Sisodia’s bail plea asked the ED if it had any proof other than the statement of a co-accused who had turned approver against Sisodia. The case came up to the apex court after Sisodia was denied bail from the lower courts up to the Delhi High Court.

Justice Khanna, presiding over a two-judge bench including Justice S.V.N. Bhatti, pointed out that as per the ED’s case, the recipient of the proceeds of the crime was “a political party” and not Sisodia, and asked why the party was not made an accused. “As far as the Prevention of Money Laundering Act (PMLA) is concerned, your whole case is that it went to a political party. That political party is still not an accused. How do you answer that? He is not the beneficiary, the political party is the beneficiary,” Countering ED arguments Justice Khanna warned that the ED’s claims against Sisodia “will fall flat” after “two questions in the cross-examination.” But on October 17, repeating the same line, Justice Khanna deferred the final verdict for October 30. Justice Khanna’s indictment of the ED was so severe that the ED told the media thereafter that it was contemplating making AAP an accused in the case.

But when Justice Khanna delivered the judgment on behalf of the bench on October 30, he denied bail to Sisodia, raising “some doubts” about some of the charges levelled by the ED. He refrained “from delving… in depth and detail into some of the legal questions arising in the matter and added, “However there is one clear ground or charge in the complaint filed under the PMLA which is free from perceptible legal challenge and the facts as alleged are tentatively supported by material evidence.”

Umar Khalid

On 14 February Umar Khalid withdrew his bail petition from the Supreme Court “due to change in circumstance.” Said his counsel Kapil Sibal, appearing for Khalid, and said instead he would try his luck once more in the trial court.

Khalid was arrested by the Delhi Police in September, 2020 charging him with instigating Muslims against the Government and fanning communal riots in East Delhi in February, 2020 on the eve of the official visit of the then US President Donald Trump.

Umar was not even in Delhi on these dates, touring Bihar. Umar’s father Syed Qamar Rasool Ilyasi debunked all charges against Umar as totally fabricated with no substance whatsoever. The Police quoted a particular sentence supposedly uttered by Umar in his speech wherein he is reported to have said that “when Trump comes, we will tell him…” Umar’s speech read out by his counsel in the court never had this sentence. Upon probing, it was revealed that this was telecast by Republic TV. When they were asked where they got it from, they attributed this quote to Amit Malviya, the head of BJP IT Cell. That is then the basis of keeping Umar behind bars for more than three years now.

Umar was first arrested and imprisoned by the Delhi Police following a demonstration in the JNU campus under the leadership of its then Students’ Union president Kanhaiya Kumar. Where again a slogan attributed to the students went viral via ZEE TV saying ‘Bharat tere tukde honge’ After this the national TV channels labelled the Leftist students in JNU as ‘tukde, tukde gang’, which Prime Minister Narendra Modi and Union Home Minister Amit Shah frequently used during the 2020 Delhi Assembly elections to garner votes for the BJP. By describing Leftists of all hues as ‘tukde, tukde gang’.

Returning to the issue of bail to Umar Khalid. For a year and half Umar approached concerned lower courts seeking bail. But every time the Delhi Police claimed the investigations were incomplete and more facts were coming to light, opposing the bail on this ground. The legal position is that in the case of UAPA, the agencies have to simply slap it on any one they accuse and it is not for the state to prove its charge. Instead, it is for the accused to disprove the charge. That itself is lopsided logic. But never mind that, using the alibi of gathering more evidence, the Delhi Police is evidently reluctant to proceed with the trial fearing an acquittal while the lower courts kept denying bail citing the charge with just one observation: ‘There is a prima facie case.’

Apart from UAPA, Khalid had also been charged with rioting, instigation, sedition and other related crimes, most of which fell when the local courts failed to find sufficient evidence. But UAPA is a charge where the state is not bound to prove anything. Instead, it is for Khalid to disprove it, which cannot be done till the trial begins. That’s the catch. Khalid won’t get any relief, before the court strikes down the charge and the Delhi Police won’t commence the trial pretending further investigations.

Khalid then approached the Delhi High Court seeking bail for the delay in the trial commencing. For six months the matter kept dragging with delays and fresh dates. Finally on 18 October 2022 the Delhi HC Bench comprising Justices Siddharth Mridul and Rajnesh Bhatnagar rejected Umar Khalid’s plea for bail observing that the prosecution had made out a prima facie case under UAPA.

Despite this on 18 November 2022, the Karkardooma court sessions court granted a week long interim bail, to Khalid to attend his sister’s marriage and on 3 December 2022 the same Karkardooma Court even acquitted Umar Khalid and United Against Hate founder, Khalid Saifi of the charge pf ‘stone pelting’ in the February 2020 East Delhi riots. Khalid and Saifi were accused of their alleged involvement in acts of rioting, vandalism and arson at a parking lot in northeast Delhi.

Finally on 6 April 2023 Umar Khalid filed a Special Leave Petition (SLP) in the Supreme Court appealing against the Delhi High Court’s decision that rejected his bail in October 2022 and on 18 May 2023 a bench comprising Justices AS Bopanna and Hima Kohli issued a notice to the Delhi government and sought a response to Khalid’s petition within six weeks. The Bench granted liberty to Khalid to seek a listing of the matter before the vacation bench. The Court then posted the matter for further hearing after the summer vacation of the Supreme Court.

Since then, 14 adjournments for one reason or the other, including change in the composition of benches happened, till finally on February 14, Umar Khalid through his counsel Kapil Sibal sought the apex court’s permission to withdraw the plea and instead approach the lower court yet again for grant of bail in the UAPA case, while keeping alive his plea in the Supreme Court against the UAPA charge.

Does it say something about the state of affairs in our law enforcing agencies, the courts not excluding. I can’t say much but leave it for you to decide.

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