Siddique Kappan’s Release On Bail After 846 Days Is A Harsh Reminder Of What Can Happen To Our Precious Freedom

On being released on bail from a Lucknow prison on Thursday, Kappan told the media that he had no idea why he was implicated wrongly in a case and jailed for 28 months. That he has been only released on bail and not acquitted of all charges against him must make it clear that it may be quite a while before he can hope to completely prove his innocence.

The phrase, ‘process itself is punishment’ stands vindicated in Kappan’s case. “Anyone who is against the government is labelled as a terrorist”, he told the media soon after his release. A close look at Kappan’s legal battle since his arrest would show that the legal presumption of innocence till proven guilty has been turned upside down in his case, for no fault of his.

The state simply assumed that he was against the government, given his professional responsibility as a journalist, wanting to cover an incident, soon after its occurrence, by visiting the place, in order to speak to different sections, including the state officials for collecting information and to make sense of what had happened following the reported gang rape of a Dalit girl in Hathras town. That the state looks at every bonafide journalist as playing an adversarial role, rather than trying to meet a professional objective, is written large in the facts resulting in his arrest.

It is tempting to blame the inordinate delay by the courts to grant him the bail, as initially, the FIR against him had recorded only bailable offences. It required the lifting of the veil by the courts to understand that the State sought to implicate Kappan in the case, in order to have a chilling effect on journalists who wished to do justice to their profession by reporting facts.

But the Supreme Court, which was first approached to secure his liberty, did not appreciate the seriousness of the grievance that the freedom of the press was the target in the case.

He was arrested by the Uttar Pradesh police on October 5, 2020. The Kerala Union of Working Journalists (KUWJ) first filed a habeas corpus petition in the Supreme Court. Normally, habeas corpus petitions are heard and disposed of within a week’s time by the Supreme Court. The then Chief Justice of India, S.A.Bobde, who heard the petition, declined to issue notice, asked the petitioner to first approach the Allahabad High Court, and adjourned the case for four weeks. The bench, presided by CJI Bobde, agreed to issue notice on the next date of hearing, that is, on November 16, 2020. Chief Justice Bobde made the unfortunate comment while hearing Kappan’s plea that the court would like to discourage Article 32 petitions. The comment appeared to have embarrassed the Court, which through another bench, declared that Article 32 is an important and integral part of the basic structure of the Constitution.

The circumstances of Kappan’s arrest didn’t inspire confidence that he would secure bail from the courts in the state. The writ petition filed before the Supreme Court alleged that the mandatory guidelines laid down in the D.K.Basu vs State of West Bengal stood violated in his arrest, and the state’s sole intention was to obstruct the discharge of duties by a journalist. The court was also informed that Kappan’s family members and colleagues were not immediately informed about his arrest as per the D.K.Basu guidelines.

Other aberrations were brought to the notice of the Supreme Court: The Uttar Pradesh police wrongly mentioned the time of his arrest as 4.50 p.m. instead of 10.20 A.M. and that he was allowed to speak to his family 29 days after his arrest; Kappan was denied bail on the first date of his production before the Magistrate, even though only bailable offences were mentioned in the FIR then.

It is a cliché that persons accused of bailable offences can get bail as a matter of right, whereas for those accused of non-bailable serious offences, bail is at the discretion of the judge, and therefore, a judicial act. It is now well settled that at the time of considering an application for bail, the court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the courts as well as the criminal antecedents of the accused. It needs to be asked whether each case of denial of bail for Kappan – thereby delaying his eventual freedom – took these factors into account.

At the time of his arrest, Kappan was held under section 107 (likely to commit breach of peace or disturb the public tranquillity) and 151 (police officer’s power to arrest without orders from a Magistrate and a warrant, to prevent commission of any cognizable offence) of the Cr.P.C. Thereafter, in the FIR filed on October 7, 2020, at Mathura, Sections 153A, 295A and 124A of the IPC, Sections 17 (funding of terrorist act) and 14 of UAPA and Sections 65, 72, 76 of Information Technology Act, 2008, were invoked.

Meanwhile, another journalist, Arnab Goswami was granted relief by the Supreme Court, even when his bail application was pending before a sessions court in Maharashtra. Although the allegations against Goswami were different, another bench of the Supreme Court justified immediate relief, because the case involved freedom of the media. The non-application of a similar principle in Kappan’s case by another bench of the Supreme Court was inexplicable.

But the writ of Habeas Corpus filed by the KUWJ on October 6, 2020, seeking Kappan’s release was listed before the Supreme Court nine times, and finally disposed of on April 28, 2021, on the ground that investigation had been completed, and charge sheet filed in the case already, and that he got alternative remedies. Yet, the Supreme Court was persuaded to direct shifting of Kappan from Mathura to Delhi for proper medical treatment, in view of his ailments. The Supreme Court made it clear that the most precious fundamental right to life unconditionally embraces even an undertrial, and that merely because the other jail inmates were receiving treatment similar to Kappan need not deter it from issuing the direction.

On January 20, the Allahabad High Court directed the NIA Court, Lucknow to hear Kappan’s discharge plea in the UAPA case afresh, as he was not heard earlier. The High Court quashed the order of the NIA court framing charges against him. The High Court reminded the trial court that it ought to have ascertained whether or not a case is made out against him at the time of framing charges. The High Court made it clear that it was not necessary for Kappan’s to move a discharge plea for this purpose. The trial court has a duty to find out whether there is any sufficient material to frame charges against him, after giving him an opportunity of being heard.

Kappan had to remain in prison for three more months, even after securing bail in the UAPA case from the Supreme Court on September 9 2022, due to the fact that the PMLA case against him was pending. The Supreme Court, refrained from dealing with and commenting upon the progress and investigation and material gathered by the prosecution in support of its case as the matter was still to be taken up at the stage of framing of charges. However, considering the length of custody undergone by the appellant and in the peculiar facts and circumstances, the Supreme Court granted him bail.

The High Court, on August 4 last year, had denied him bail in the UAPA case, citing the Supreme Court’s ruling in NIA vs Zahoor Ahmad Shah Watali, to interpret Section 43(D)(5) of UAPA and to reach its prima facie conclusion that Kappan had committed the offence on the basis of the chargesheet and the documents adduced. In Watali, the Supreme Court held that Section 43(D)(5) of UAPA prohibits a Court from granting bail to accused if on a perusal of a final report filed under Section 173 Cr.P.C, the Court is of the opinion that there are reasonable grounds to believe that the accusations against such person are prima facie true.

But subsequent jurisprudence favours the view that the courts can rely on reasons traceable to Article 21 without addressing the statutory embargo created by Section 43 (D)(5). In Union of India vs K.A. Najeeb, the Supreme Court reasoned that the presence of statutory restrictions like Section 43(D)(5) of UAPA per se do not oust the ability of constitutional courts to grant bail on grounds of violation of part III of the Constitution.

Ironically, however, the Supreme Court bench, on September 9 last year, had refrained from commenting on the High Court’s reliance on Watali, to deny Kappan bail. A reasoned judgment in this case as to why it was inappropriate for the High Court to apply Watali in this case could have set a healthy precedent in similar cases. In K.A.Najeeb, the Supreme Court clearly distinguished Section 43(D)(5) of UAPA as comparatively less stringent than section 37 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act. Under NDPS, the court ought to satisfy itself that the prima facie the accused is not guilty and that he is not likely to commit another offence if released on bail. The Supreme Court noted that there is no such pre-condition under the UAPA, in K.A.Najeeb.

However, the Supreme Court wondered whether Kappan’s case was even ripe for trial, as the prosecution claimed that attempts to make the co-accused as approvers were going on. The Supreme Court had also expressed its misgivings whether the literature found in Kappan’s possession at the time of his arrest, could be described as provocative, as it is not an offence to campaign that victims need justice. The bench had even compared it with the 2012 protests in Delhi following the Nirbhaya incident, which resulted in legal reforms.

On December 23, 2022, the High Court, while granting bail to Kappan in the PMLA case, noted that the proceeds of crime, allegedly dealt with by Kappan, was only Rs.5000 whereas to attract the twin conditions of PMLA, the proceeds of crime should be Rs.1 crore or more.

Considering the facts of Kappan’s case, it is clear that he could have obtained bail much earlier, had the courts recognised earlier his right to presumption of innocence till proven guilty.