By Advocate Madhuvan Dutt Chaturvedi
This article is for those blind people who think freedom is from one country to another. In Free Countries, many times revolutions took place due to the trampling of rights of citizens by those in power and for the protection of democratic ideals & The French Revolution which wrote a new chapter of freedom, gave the slogans of freedom, equality and justice. Democracy gave a new shape to the definition of liberty in the relationship between the state and the citizen. This is a unique story of the present government’s misadventure on this freedom.
On October 5, 2020, i.e. exactly one year ago today, the UP Police arrested Journalist Sidhique Kappan along with CFI activists Atikur Rahman, Masood Ahmed and their driver Alam while going from Delhi to Hathras, on the suspicion of disturbing the peace. They were arrested from Mant in Mathura, on the Yamuna Expressway and booked under the Section 151 CrPC. On 6 October 2020, SDM Mant, Mathura gave notice for investigation of Section 107/116 CrPC and sent them to jail without any probe order on Section 116(3) CrPC. Section 116(3) of the Order was passed in that case only on 19.10.20. which means They were in illegal custody from 06.10.20 to 19.10.2020. On 07.10.2020, The Mant Thana Police registered a report against them under Section 17/18 of UAPA under Section 124-A Sedition and took them under remand from the CJM Court Mathura. However, due to the UAPA being listed in the NIA Act, his remand custody could only be ordered by either a ‘Special Court’ or a Sessions Judge.
The Magistrate Court had no authority in this regard and despite that the CJM Mathura court’s custodial remand order prevailed till 22.12.2020, contradicting the Supreme Court’s order of Law laid down in Vikramajit Singh vs State of Punjab (2020). And then, suddenly on the application of STF, quoting the same law and Supreme Court order, District and Sessions Court Mathura transferred the remand file from CJM Court to 1st ASJ Mathura on 22.12.2020. However, Under the NIA Act, in the absence of a Special Court, only the Sessions Judge can exercise those powers and not the Additional Sessions Judge ASJ. The ASJ can exercise the powers of a Sessions Judge only in cases that have either been committed to the Session Judge from the Magistrate or in those cases that are filed in the Session Court and the Sessions Judge had then committed them to an ASJ for hearing. In this regard, MR Malhotra case AIR 1958 All 492 has to be considered.
This case was neither submitted before a Sessions Judge nor was it filed in the Sessions Court. In such a situation, the ASJ Court did not have the right to hear it and yet The ASJ court sent him to jail without authority. Not only this, since the investigation was not completed in 90 days, an extension of 90 days was given to the STF, which no one could give except the Special Court. So they continued to extend the custody till 03.04.2021 without authority.
Finally, on 03 April 21, the STF filed the charge sheet. Even this charge sheet was filed without permission. The law says that cognizance of offences under section 153-A, 295-A, 124-A IPC cannot be taken without the permission of section 196 CrPC. Cognizance of Section 17 and 18 UAPA cannot be taken without the permission of Section 45 UAPA. Nevertheless, 1st ASJ Mathura took cognizance of the charge sheet on 03.04.2021 and authorized their custody under Section 309 SPR which is still in progress. The cognizance of section 196 CrPC was allowed on 12.04.21 (after 03.04.21) and later in June 2021 it was amended and section 45 of UAPA was added to it. The Court has made no mention of any permission in the order of cognizance but has only put the subsequent permission on record.
It is noteworthy that the case of apprehension of breach of peace in which those people were detained on 05.10.2020 was dropped on 15.06.2021 as the government could not prove the existence of such apprehension within the prescribed period. Contrary to section 116 (6) CrPC, in this case, also, they were kept in custody without any reason from 05.04.2021 to 15.06.2021 in the case of breach of the peace.
Not only this, after the case of UAPA from Mant police station, these people were also taken into custody on 19.10.2020, by adding UAPA in case number 151/20 of 124-A IPC from Thana Chandpa Hathras, even though they had never gone to Hathras nor did they have any link with the statements of the FIR. Two UAPA FIRs were run on the same set of facts in the same State simultaneously till December 2020 and their custody was authorized in that case.
There too Magistrates were authorising demands without the invocation of UAPA. Even before the disposal of the objection at the level of the bail, the government amalgamated the case of 151/20 of Chandpa, Hathras from case 199/20 of Mant, Mathura and released them from the case of Chandpa. This was a unique case of amalgamation of two different FIRs of two different districts. Thus we see, that from 05.10.2020 to today 05.10.2021 Journalist Sidhique Kappan and his driver Alam, co-travellers Masood Ahmed and Atikur Rahman are in continuous illegal custody in Mathura jail under this case.
The most interesting thing is that a habeas corpus petition was filed on 05.11.2020 on behalf of the accused Alam, Masood and Atikur Rahman in the Hon’ble High Court of Allahabad for releasing them from their illegal custody. The petition is to be heard on 27.10.2021. There is hardly any instance in any judiciary in the world, where the hearing of a habeas corpus petition has been postponed or delayed for almost a year.
All the accused are Indian citizens. The Constitution guarantees the rule of law in India. This guarantee is extended even to foreign nationals (that equality before the law will be maintained). We elect individuals to power because they will govern within the framework of the Constitution. We do not elect governments for autocratic rule. However in this case the Central and State Governments of India have not been able to show commitment to the rule of law. Their political agenda has overshadowed the respect for the law. The judiciary has also not been successful in discharging its duty on time as opposed to the well-established principle “Justice Delayed is Justice Denied”.
When we study this case we can easily get the answer to the question as to why students of many universities in India were raising slogans of ‘Hum Le Ke Rahenge Azadi’ in Independent India and also why the governments were calling them anti-national. As a lawyer, I remind you that without the freedom of the citizens, the freedom of the country has no meaning.
This case is a prime example of a case study on human rights abuses. Atikur Rahman, who is one of the arrested is suffering from a disease called aortic regurgitation since childhood. Before his arrest, he was undergoing treatment at AIIMS and the disease was in a severe stage. In jail, despite falling ill repeatedly, he was not taken to AIIMS for treatment. Right to treatment is not affected by whether a person is accused or convicted and in this matter, the court has not even framed charges against Atikur Rahman. His life is at stake and governments are playing with his life. If he dies in custody, it will amount to culpable homicide not amounting to murder.
How can a civilized society ignore such an attitude of the government towards its own citizens? In a civilised society, even a soldier of a declared enemy nation deserves better treatment in custody, whereas here Atikur Rahman is an Indian citizen and has the right to disagree with the governments or express opposition because of his civic duties. Throughout the investigation, the Government has not been able to collect or present any evidence that these persons have challenged or damaged the constitutional structure of the Government of India. As far as the allegation of Muslim favouritism is concerned, even if true, it cannot be classified as a crime. Speaking of injustice or atrocities against any ethnic or religious group does not amount to enmity between communities, unless there is an incitement to cause injustice or atrocities against a different community, or there is a matter of increasing hatred towards them. For example, if there had not been a talk of neglect or atrocities towards women, scheduled castes, tribes, minorities, they would never have come to the fore in a democratic India.
Perhaps now the governments would also include speaking on incidents of caste oppression in the category of spreading hatred and incitement of enmity between communities. It’s all a scary scenario. This is why I strongly feel that an independent and active judiciary is imperative to protect the democratic rights of the citizens of India.
