Gravity Of Offence Can't Be Overlooked While Applying Triple Test For Bail: Prosecution Opposes Sharjeel Imam's Plea In Anti-CAA Speeches Case

The State has opposed Sharjeel Imam's bail plea before the Delhi High Court in a case relating to the alleged inflammatory speeches made by him in Aligarh Muslim University and Jamia area in Delhi against the Citizenship Amendment Act.

The prosecution has argued that the severity and gravity of the offence which Imam has been charged with cannot be overlooked in any manner before applying the Triple test for bail.

Imam was booked vide FIR 22/2020 by the Delhi Police. The alleged offence under UAPA was added later. 

The Trial Court had framed charges against Imam in the matter under Sections 124A (sedition), 153A (Promoting enmity between different groups on grounds of religion, etc.), 153B (Imputations, assertions prejudicial to national-integration), 505 (Statements conducing to public mischief) of the IPC along with Section 13 (Punishment for unlawful activities) of the UAPA.

In the affidavit filed by the prosecution, it has been stated that once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted it to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged to justify the framing of charge.

"In the order on charge, the Ld. Trial Court has discussed in details the manner in which each ingredients to constitute offences are made out and has come to conclusion that the offences involved in the present case merit imprisonment for life. Thus, once the Ld. Trial Court has come to this conclusion, the statutory bar comes in play restricting jurisdiction of the Ld. Trial Court to grant bail," the reply reads.

Furthermore, the affidavit states that since, in the appeal, no stay of operation of order framing charges was sought, the legality and validity of the said order continues.

"Even otherwise, the said order is well reasoned order taking into account respective contentions of both the sides and based on settled principles of law. It is settled principles in law that consideration for bail post framing of charges are materially different from pre-charge stage," the reply states.

The prosecution has also averred that bail must not be granted as the nature of offences for which Imam has been charged is grave and that there is no frivolity in the case of the prosecution.

"The Fundamental criteria i.e., the severity and gravity of the offence, cannot be overlooked in any manner before applying the Triple test. The facts of the instant case on which the charges are framed against the accused indeed suggest that the offence, as charged against the accused, is grave in nature and there is no frivolity in the case of the prosecution," the reply avers.

Under the Triple Test, the Courts assess whether the accused is a "flight risk", or whether there are chances of tampering with evidences, or whether there is likelihood that the accused shall influence the witnesses.

While the matter was slated to be heard today by a division bench headed by Justice Siddharth Mridul, the same could not be heard due to paucity of time. The matter will now be heard on April 29.

Advocate Tanveer Ahmed Mir is representing Sharjeel Imam whereas Special Public Prosecutor Amit Prasad represents prosecution in the matter.

Imam had filed the petition challenging the Trial Court order denying him bail in the FIR in question. It is Imam's case that the Special Court failed to appreciate that in cases where substantive penal offences do not place any embargo on the power of the Court in deciding a bail application, then merely by virtue of the fact that the Court of Sessions having been designated as a 'Special Court' under the NIA Act shall not prejudice the right of an accused to his liberty.

The plea states that criticism of the Indian Constitutional Principles i.e., Secularism and Democracy as it is there in the present form cannot be alleged to having being said to spread disaffection against the Government.

"It is most humbly submitted that the prosecution has tried to create a narrative of communalism and religious extremism around the Appellant Sharjeel Imam by conflating purported discussion of issues affecting a particular religious community," the plea states.

It adds "It is most humbly stated that the prosecution in its unholy quest to make out a case against the Appellant under section 13 of UAPA and 124A of IPC has referred to multiple cases of violence in which FIRs have been registered in Delhi and Aligarh which the prosecution is attributing to the speeches delivered by the Appellant. Firstly, at the cost of repetition it is most humbly submitted that there was absolutely no call for violence/incitement to violence in any of the speeches and secondly, in none of the FIRs referred by the prosecution, the Appellant is an accused but in case FIR No. 242/19, P.S. NFC as already disclosed in para 11 and 12 of the bail application."

Case Title: Sharjeel Imam v. The State of NCT of Delhi