After SC Order on Sedition, Delhi High Court Asks Trial Court To Consider Sharjeel Imam's Bail Plea Afresh

Permitting him to withdraw his application for regular bail in a 2019 sedition case, the Delhi High Court has asked the trial court to first consider former JNU student Sharjeel Imam's application seeking relief under Section 436-A CrPC on the ground that he has remained in custody for 31 months in the FIR. 

Section 436-A provides that when a person before the conclusion of trial has undergone an imprisonment of up to one-half of the maximum sentence specified for the offence alleged against him, he can be released by court on bail. The case against Imam registered at the NFC Police station pertains to a speech he had delievered at Jamia Millia Islamia in 2019

Justice Anoop Kumar Mendiratta in the order passed on September 26 asked the trial court to also take into consideration Supreme Court's order of keeping the offence of sedition in abeyance, while taking a decision on Imam's application.

Imam was denied bail by a Saket Court in October 2021, saying that the tone and tenor of his 'incendiary speech' had a debilitating effect upon public tranquility, peace and harmony of the society. While his plea seeking bail was pending before High Court, Imam had recently moved an application in trial court under Section 436A.

He has argued that since he has been incarcerated for about 31 months after being arrested in February 2020, he is entitled for the benefit of being released - having undergone detention for more than one-half of the maximum period of imprisonment under Section 153A of IPC. Section 153A provides for a maximum of three years of punishment.

Imam's counsel on Monday submitted that trial court, while dismissing his bail plea, had only made observations against him with respect to offences under Section 153A and 124A of IPC and opined that no case was made out under other offences. Advocate Ahmad Ibrahim argued that the only offence which now warrants consideration of the trial court during the hearing of bail plea is Section 153A as offence of sedition has been kept in abeyance. 

While Ibrahim sought a clarification that the pendency of his bail plea before High Court should not come in the way of deciding his application under Section 436A CrPC before the trial court, the prosecution submitted that Imam's bail plea pending before High Court may be withdrawn in entirety, as it may not be appropriate to consider the application under Section 436A CrPC in a piecemeal with reference to Section 153A of IPC.

Justice Mendiratta noted that Section 436A CrPC was inserted by an amendment in 2005 with a laudable object for granting bail with respect to the offences for which the punishment of death has not been specified as one of the punishments, to uphold the rights of imprisoned individuals who are forced to languish in jail for prolonged period, pending inquiry, investigation or trial. 

"The provision draws the maximum period for which an undertrial prisoner can be detained and the period needs to be reckoned with the custody of the accused during the investigation, inquiry and trial," the Court said. 

It added, "However, the first proviso to Section 436-A Cr.P.C. permits the continued detention of said person for a period longer than one-half of the said period, if such detention is necessary for the reasons to be recorded in writing. Such an exercise of power is expected to be undertaken sparingly being an exception to the general rule."

The court further said that it also needs to be kept in perspective that Section 436-A CrPC facilitates liberty "being the core intendment under Article 21 of the Constitution of India."

The NFC Police FIR alleges that on December 15 in 2019, an information was received by Police regarding a demonstration being held against the Citizenship Amendment Bill (CAB) by the students and residents of Jamia Nagar.

A mob had blocked traffic movement on the road and started damaging public/private vehicles and properties with sticks, stones and bricks, according to the police case. The prosecution has claimed that rioters got instigated by the speech delivered by Imam on December 13 in 2019 and then resorted to violence.

The trial court in its bail order in October observed that the evidence against Imam was "scanty and sketchy" to take a prima facie view that his speeches incited riots, The court was also of the view that the prosecution case for instigation of riots was left with "gaping holes" which cannot be filled with "surmises and conjectures".

However, his bail plea was dismissed noting that further examination was needed to ascertain if the speech amounted to the offence of sedition under Section 124A IPC and promotion of communal disharmony under Section 153A IPC.

Title: Sharjeel Imam vs. State

Citation: 2022 LiveLaw (Del) 907

Click Here To Read Order