Hate speech case: Delhi HC seeks police response on why Sharjeel Imam should not be granted bail

The division bench of Justice Siddharth Mridul and Justice Anoop Kumar Mendiratta said the court “is loath” to permit detention in the absence of compelling circumstances prior to the conviction: “Convict a man and sentence him is a different matter but for pre-conviction detention, there have to be compelling reasons for us to detain. We don’t know how long this trial will take.”

Imam, a PhD student from JNU, in the appeal has sought setting aside of the order dated January 24, by which Additional Sessions Judge Amitabh Rawat dismissed his application for bail in the case registered by the Crime Branch on January 25, 2020, under IPC section 124A (sedition), section 13 of UAPA and other provisions of the penal code.

Observing that the order passed by the lower court is very circumscribed, the division bench said, “Why should he not be enlarged on bail. The point is he (trial court) deals with nothing”. The counsel representing the police submitted that Imam’s conduct has to be seen in totality.

The court at the outset observed that section 13 does not fall under Chapter IV of UAPA — which pertains to terrorist activities, and thus he does not require to meet the stringent conditions for bail under the anti-terrorism law. It is a regular bail case where the court, while considering the prayer, has to see whether he is a flight risk or in a position to tamper with witnesses, it added.

“The (bail) order is very cryptic. It says … ‘Considering facts and circumstances, gravity of offences, allegations levelled, charges have been framed… not inclined to grant bail’ This is not a consideration of a bail application,” said the bench.

It continued, “He (trial court) has not dealt with anything… he has not said he is a flight risk. He has not said he will tamper with the evidence. He has not said he will intimidate or influence witnesses… Those are the considerations or are those considerations completely alien to Section 437 (CrPC)”.

On sedition charges in the case, the bench said the law has already been laid down on it by the Supreme Court in the Kedar Nath Singh case and there has to be a conscious act of inciting violence, and propagating or promoting it.

“The reason we are going through this exercise is for your benefit so that you are able to respond to it. Because the impugned order does not (deal with the questions),” the court told police.

Advocate Tanveer Ahmad Mir, representing Imam, earlier had submitted that on 25 occasions in his speech, Imam said “we don’t have to resort to violence”. He has been in custody for the past 25 months, Mir added.

“The problem in FIR is that it seeks to pick out three lines from the speech and seems to portray as if the man is intending to spread hatred. When the lordships will have a look at the speech as a whole, he is seeking to criticise too many things including the government action or otherwise the propaganda,” argued Mir, adding that he has been implicated in different FIRs for the same speech.

The court granted police 10 days to respond to the petition and listed it for hearing on March 24. “You’d have to really persuade us that he should not be on bail,” it told the counsel representing the police.

Imam, who is in detention in other cases also, in the Crime Branch case is accused of giving “inflammatory and instigating speeches” against the government on CAA and NRC, particularly at Jamia Millia Islamia University in December 2019. He was arrested from Bihar on January 28 in 2020.