"We Are Victims of Communally Charged Politics and Propaganda Run by Media": 3 Persons Arrested With Siddique Kappan Tell Allahabad High Court

The development comes after the High Court granted it one last opportunity to file its supplementary counter affidavit, vide order dated February 4.

The Petitioners Atik Ur Rehman, a student; Alam, a cab driver and Masud, an activist, were intercepted by the Deputy Superintendent of Police on October 5, 2002, while they were going to Hathras and were later remanded to judicial custody by CJM Mathura.

They were accused of conspiring to cause riots and caste-based unrest in Hathras and were booked under the stringent Unlawful Activities (Prevention) Act, 1967 (UAPA).

Responding to the affidavit, the three detenus have alleged that they are victims of communally charged politics and the propaganda run by various media outlets.

Communally charged politics & propaganda run by media outlets

It is alleged that the even the State Government's counter affidavit reeks of stench of communalism, inasmuch as it accuses the Petitioners of trying to create Islamic Rule in the Nation, without any iota of evidence.

In their rejoinder affidavit, filed though Advocates Shashwat Anand and Ankur Azad, it is alleged,

"Since several days prior to the arrest of the petitioners while en route to Hathras, a large section of the Media had been running programmes on a false and humbug agenda of 'Conspiracy to instigate Riots and create Caste-based unrest' and 'International Conspiracy to defame Govt. with funding from Islamic States' in context of the Hathras gangrape incident."

It adds,

"The said agenda was run by the Media Outlets purely on communal and divisive lines, targeting the Opposition Parties and their Leaders for the said 'Conspiracy.' However, the petitioners, who are not associated, affiliated or related to any political party or dispensation, were unlawfully arrested and detained in an utter travesty of their fundamental rights guaranteed by the Part III of the Constitution, in a blistering display of collusion and high-handedness of the police authorities, administration and the media."

False statements and misconcieved counter affidavit

It is stated that the allegations levelled against the Petitioners viz., quarrelling with the police personnel, or efforts to create communal war in the State, or dividing Dalit group against other caste and also against the State, or to unite Dalit group to create proxy war against the State, are all "cooked up, concocted, misleading and untrue, drawn on communal and divisive lines".

Criminal contempt of court

The Petitioners have alleged that in the counter affidavit, the State Government has made a statement on oath that the Sessions Judge, vide order dated January 4, has extended the period of judicial remand of the Petitioners by 180 days.

It is contended that the said order was in fact passed by Additional Sessions Judge, Mathura, who is not a competent Court under the NIA Act.

The rejoinder states,

"This statement is palpably false and has dishonestly and deliberately been made with a view to confound the matter and mislead the Court. In fact, the said extension order has not been passed by the Ld. Sessions Judge, to the contrary, it has been passed by the Additional Sessions Judge, Court No. 1, Mathura, who is not a competent Court under the NIA Act. Using the expression "Sessions Judge" for 'Additional Sessions Judge' is not an inadvertent mistake, rather it is a conscious and deliberate act of the deponent swearing and filing the said affidavit, which is patently false and amounts to Criminal Contempt of Court."

Investigation legally vitiated for non-compliance of Law

The Petitioners have alleged that the entire investigation in this case has proceeded in utter disregard of Section 6 of the NIA Act.

As per this provision, the Police authorities shall forward a report to the State Government in case of receipt of information relating to commission of any Scheduled Offence. State Government shall forward such report to the Central Government as expeditiously as possible which in turn will determine, within 15 days, whether the offence is a Scheduled Offence or not and also whether it is a fit case to be investigated by the NIA.

In the rejoinder it is alleged that nowhere has it been mentioned by the UP Government whether the above provisions have been complied with.

"Accordingly, the entire investigation being carried on by the State Government and its investigating agencies, amounts to usurpation of jurisdiction of the Central Government and a fraud on law and the NIA Act," it states.

Illegality of Custody

It may be noted that the Petitioners have challenged the order of judicial remand, inasmuch as it was passed by the Court of Magistrate, which is alleged to not be a competent authority for dealing with cases under the scheduled offences of UAPA, in terms of Section 13(1) of the National Investigation Agency Act, 2008.

When this issue was raised in the writ petition, the UP Police's Special Task Force (which is investigating the case), moved an application to transfer all the Remand Records from the Court of CJM, Mathura to the Court of Additional District and Sessions Judge, Mathura.

The application was allowed and the District and Sessions Judge, Mathura transferred the case to Additional District and Session Judge.

Case Against Siddique Kappan & 3 others Transferred To Addl. District & Sessions Judge On UP Police's Application

The Petitioners have now submitted that the said order of the ASJ suffers from the vice of inherent lack of jurisdiction and is total nullity and further, and is also void for the reason that the Ld. ASJ, Mathura, cannot 'accept/ratify' the non est remand order passed by the CJM, Mathura, as the same also suffers from inherent lack of jurisdiction.

The matter is listed for hearing on February 18, 2021.