UAPA Case| ‘Prima Facie His Counsel Wasn’t Heard’: Allahabad HC Directs NIA Court To Decide Siddique Kappan's Discharge Plea Afresh

The bench of Justice Shree Prakash Singh passed this order on Monday after observing that the Trial Court had, while proceeding to frame charges, neither accepted, nor rejected Kappan’s discharge plea, and prima facie no opportunity for a hearing was granted to his counsel.

Stressing upon the necessity of a trial court to ascertain whether on not a case is made out against an accused at the stage of framing of charges, the Court observed thus:

“Further it is also not incumbent upon the accused that he must have moved an application for discharge. Even in a situation that there was no application for discharge moved, then it is incumbent upon the trial court to decide it that whether there is sufficient material available against the accused so as to frame charges,but opportunity of hearing to the accused at this stage is an esssential condition.”

Consequently, noting that the counsel for Kappan was not heard at this stage, the Court remitted the matter back to the trial court for the purpose of deciding Kappan’s discharge application afresh after hearing his counsel.

For this very purpose, the Court has directed the concerned parties, including the counsel for Kappan to appear before the trial court.

The case in brief

Essentially, Kappan had moved the High Court with his Section 482 CrPC plea challenging the order of the Special Judge, NIA/ATS/Additional District & Sessions Judge-5, Lucknow framing charges in the UAPA case (alleged Hathras Conspiracy case) against him.

He also prayed for a direction to the NIA Court to decide his Discharge on merit, after affording an opportunity for a hearing.

Primarily, it was submitted on his behalf by Senior Counsel IB Singh that without providing the prosecution papers in compliance with section 207 of CrPC, the Trial proceeded in the matter on December 19, 2022, and charges were framed against him without deciding his discharge application filed through his counsel before the trial court.

It was submitted that Kappan’s counsel was sitting inside the courtroom, however, the Judge while sitting in his chamber, passed the order, and the counsel for the applicant was not heard.

In essence, it was argued that the Trial Court proceeded to frame charges against Kappan despite the fact that his application for discharge under section 227 of CrPC was pending the Court’s consideration.

Further, the Senior Counsel also challenged the order of the Court appointing an amicus curiae in the matter as he submitted that no application had been moved on Kappan’s behalf or through his counsel for making for appointment of amicus curiae and despite that, the said order was passed.

On the other hand, the counsel for the state argued that the order was passed by the Court during its working hours and Kappan’s counsel came later on and since none appeared to press the application for discharge, thus, the trial court had no option, but to proceed to frame charges in the matter as per section 228 of CrPC.

Court’s observations

Having considered the arguments for both parties, the Court observed that it is incumbent upon the Court to reach the conclusion whether or not there is no sufficient ground to proceed against the accused, even if no such discharge plea has been moved by the accused.

“This court is of the considered opinion that after the application of judicial mind on discharge, the trial Judge shall enter into the next proceeding i.e. framing of the Charge. It is prima-facie overt from the wordings of Section 228 of Cr.P.C. i.e. “Framing of Charge” and “if, after such consideration and hearing, as aforesaid”, the procedure of Section 227 of Cr.P.C. is of much importance and that cannot be skipped by the trial court. The intent of the legislature is very clear that the procedure prescribed in Section 227 of Cr.P.C. for discharge of the accused is in fact safeguard and rider so that a person who has been alleged to commit an offence, may not be harassed for facing trial proceedings. Therefore, the application of mind as well as assigning reasons for passing the order under section 227 of Cr.P.C. is of much importance, which has to care of by the trial court.”

Regarding the order for appointment of an amicus curiae, the Court noted that as per provisions of section 304 of Cr.P.C., there are two conditions, wherein an Amicus Curiae can be appointed and so far as the present case is concerned, prima-facie, there was no such conditions prevalent and that there was no occasion for the Court an Amicus Curiae.

It may be noted that there is a specific provision under section 304 Cr.P.C. that an Amicus Curiae can be appointed if the accused is not represented by a pleader or the accused has no sufficient means to engage a pleader. However, the Court added, that the same was not the case with Kappan.

Consequently, finding illegalities and ambiguities in the Court’s 19th December order, the Court set aside the same and remitted the matter back to the NIA Court to decide the discharge plea afresh.

Appearances

Counsel for Applicant: Senior Advocate IB Singh, Advocates Ishan Baghel, Mohd. Khalid

Counsel for Opposite Party: G.A.

Case title - Sidhique Kappan vs. State Of U.P. Thru. Prin. Secy. Home Lko. [APPLICATION U/S 482 No. - 161 of 2023]

Case Citation: 2023 LiveLaw (AB) 28

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