The Supreme Court on Friday allowed bail to Kerala journalist Siddique Kappan, who has been in custody for nearly two years and is accused of offences under the draconian Unlawful Activities (Prevention) Act (UAPA), saying “every person has a right to free expression”.
A three-judge Bench led by Chief Justice of India U.U. Lalit directed the State of Uttar Pradesh to produce Mr. Kappan before the trial court within three days for release on bail subject to conditions that would ensure his presence in the trial.
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The Bench directed that Mr. Kappan would remain in Delhi for six weeks immediately following his release and report to the local police station every Monday. At the end of the six weeks, he was at liberty to re-locate to his native place, Malappuram, in Kerala. He would continue to mark his presence in the local police station there on Mondays.
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Mr. Kappan would be present either in person or through his lawyer at every date of his trial in the case. He should surrender his passport to the investigating agency, if not already done. He should not get in touch with any person associated with the case. The court said restrictions on his movement could be relaxed, if need be in order to allow him to attend proceedings or seek bail in a money laundering case initiated against him.
The court refrained from commenting in its order about the progress of the investigation or the prosecution material against Mr. Kappan, saying the charges in the case were yet to be filed though the chargesheet was submitted in the trial court way back in April 2021.
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It said Kappan was eligible for bail on the basis of the length of the custody undergone and the peculiar facts and circumstances of the case.
Uttar Pradesh, represented by senior advocate Mahesh Jethmalani, objected to the plea for bail by Kappan, represented by senior advocate Kapil Sibal and advocate Haris Beeran, saying he was the "terror gang" PFI's "agent provocateur", financed and sent to incite riots in Hathras following the alleged gangrape of a Dalit girl. His attempt was "nipped in the bud" when the police arrested him along with three others while travelling in a car to Hathras on October 5, 2020.
Mr. Jethmalani alleged the "literature" found in the car contained messages like 'Justice for Hathras' and "optics to stir up feelings". There was allegedly a "toolkit" or a "riot incitement handbook".
"Every person has a right to free expression. He may be trying to propagate an idea that there is something and the victim requires justice and so 'let us be a common voice'... Will that be a crime in the eyes of the law?" Chief Justice Lalit asked Uttar Pradesh.
Justice S. Ravindra Bhat reminded how protests at India Gate had once led to changes in the rape law.
"Sometimes protests are necessary to highlight deficiencies at some point… Till now, you (Uttar Pradesh) have not shown anything provocative," Justice Bhat addressed Mr. Jethmalani.
The court asked Mr. Jethmalani whether there was anything in the literature which pointed in the direction that Mr. Kappan was going to incite riots in Hathras. The court enquired if any explosives were found in the vehicle, to which the State replied in the negative.
"So, at best what you can say is this man was travelling in a vehicle with three others when you apprehended him on the Yamuna Expressway and inside the car there was some literature…" Chief Justice Lalit summarised.
Mr. Sibal said the literature was not found on Mr. Kappan's person. These documents were unrelated to India. "This is not prosecution but persecution," the senior lawyer said.
"We are only looking at the question of bail here…," the Chief Justice told Mr. Sibal and turned to Mr. Jethmalani to point out that "the man has undergone almost two years in custody. Is there any immediate prospect of the investigation seeing a sort of culmination?"
Mr. Jethmalani assured the court that the investigation would be completed shortly. The delay in framing of charges was due to the process of turning someone an approver in the case. Rather than seeking bail now, Kappan could apply for a discharge later, he suggested.
"Your attempts to turn someone approver is ongoing, which means the matter is not ripe for framing of charges," Chief Justice Lalit told the Uttar Pradesh side.
"It will be in two months," Mr. Jethmalani replied.
"Mr. Jethmalani, we will grant him bail," Chief Justice Lalit said.
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