Mathura Court Rejects Bail Plea Of 3 Alleged PFI Members Held On Their Way To Hathras

The Mathura Court on Friday (13th November) rejected the bail plea of 3 alleged PFI activists who were held on their way to Hathras along with a Kerala journalist (Siddique Kappan) while they were going to meet the family members of an alleged gang-rape and murder victim.

The Additional District and Sessions Judge Mayur Jain rejected the Bail applications of Atiq-ur-Rahman, Masood Ahmad and Mohammad Aalam who are facing several charges, including Sections 17 and 18 of Unlawful Activities (Prevention) Act (UAPA), Sedition (S. 124-A IPC), Promoting enmity between different groups on ground of religion (S. 153-A IPC), deliberate and malicious acts intended to outrage religious feelings (S. 295-A IPC) and Section 65, 72 and 75 of the IT Act.

The first Accused, Atik Ur Rehman, is a student; the second Accused, Masud, is an activist and pursuing PhD and the third Accused Alam, is a cab driver.

The bail applications of Rahman, Masood and Alam were moved to Sessions court after their bail pleas were rejected in the lower court of Mathura. The accused were represented by Advocates Madhuvan Datt Chaturvedi, Md Tahir and Saifan Shaikh.

"In the bail applications, we told court that no crime could be made out against these three youths. Also, so far, police have failed to collect any evidence against them. We also questioned the state government's decision of ordering UP Police's Special Task Force (STF) to investigate the case. We also told the court that there has been a violation of Section 6 of The National Investigation Agency Act, 2008. A case under Unlawful Activities (Prevention) Act should be investigated by NIA and till a decision is not taken by the government, the SHO of the police station concerned (where FIR has been lodged) should investigate the case," said defence counsel Madhuban Dutt Dwivedi (as per a report of The Indian Express).

Court's Order

The Court delivered 3 separate orders, however, the ground on which the bail pleas were rejected is same i.e., the bar under Section 43D(5) in The Unlawful Activities (Prevention) Act, 1967.

The Orders state that the Bail Pleas are liable to be rejected due to the embargo created under Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967 that the Court could not grant bail.

It may be noted, the bar under Section 43D (5) of The UAPA 1967 states that,

"(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

The Court relied on the Kerala High Court Judgment in the case of Thwaha Fasal vs State Of Kerala and others MANU/KE/5104/2019 wherein it was observed that,

"We are of the definite view that at this stage of the case, neither the Sessions Judge/Special Judge nor this Court is expected to find from the materials placed before the court as to what is/are the precise offence(s) made out from the records. Such an adjudication can be done only at the trial and, in any case, it cannot be done at this stage. We shall only embark on a consideration as to whether prima facie any offence requiring an investigation, by keeping the accused in custody, is made out or not and also if the materials produced prima facie reveal their complicity in the offences alleged, could their release on bail hamper in any way the progression of the investigation." (emphasis supplied)

In this backdrop, the Mathura Court observed that if the accused is facing prosecution under penal provision falling under Chapter IV and/or Chapter VI of the UA(P) Act, the court has to determine on the basis of the materials in the case diary and/or charge sheet, as to whether there are reasonable grounds for believing that the accusations against the said accused are prima facie true.

The Court further observed that the accused are facing charges of Sedition, Promoting enmity between different groups on ground of religion and deliberate and malicious acts intended to outrage religious feelings.

The Court also observed that it has been alleged by the Prosecution that the accused had created Justice For Hathras Victim website and they were seeking money from foreign countries to use it for creating unrest in the society.

The Court also took into account the allegations of the Prosecution that the accused sought to create disharmony and through the said website, they sought to propagate anti-national emotions among the youth.

In this context, the Court observed that the allegations against the accused are grave in nature and thus, keeping in mind the mandate of Section 43D (5) of The UAPA 1967, the Court rejected the Bail plea of all the three accused.

Notably, a Habeas Corpus Writ Petition has already been moved in the Allahabad High Court praying for directions to the UP Government to set free the 3 alleged PFI Member, who are allegedly, illegally detained by the Deputy Superintendent of Police while they were going to Hathras to meet the family of the deceased gang-rape victim.

The plea has been moved by Shakhavat Kha (the Maternal Uncle and Father-In-Law of the accused Atik Ur Rehman, the Petitioner No. 1) through Advocates Shashwat Anand, Sarveshwari Prasad and Rajesh Inamdar.

Background of the Case

In their bail pleas, the accused had submitted that being concerned social activists, they were going to meet the bereaved family and offer them consolation and solace and to share their grief so as to help them in their quest for justice.

They alleged that they were detained on October 5, 2020, in Mathura, while they were on their way to Hathras.

About Siddique Kappan

The Chief Judicial Magistrate (CJM), Mathura Anju Rajput had on 16th October dismissed an application filed by the Kerala Union of Working Journalists (KUWJ) to meet Malayalam Journalist Siddique Kappan, presently lodged at Mathura jail.

Significantly, the Kerala Union of Working Journalists has filed an application for interim directions before the Supreme Court, seeking permission for regular VC meetings of Kerala journalist, Siddique Kappan, with his family members and lawyers.

A  plea seeking his relief is already pending before the Supreme Court and on the previous hearing; the Court had asked the Union to amend the petition to incorporate subsequent developments in the case.