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Bail Prevails Over Jail

Congress leader Afzal Lakhani, who was arrested for posting anti-Indian and pro-Pakistani messages, besides derogatory remarks against Prime Minister Narendra Modi and his late mother Hiraben Modi, was granted bail by the Supreme Court recently. The Court has also intervened in other cases where bail was denied by the High Courts

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The bail versus jail debate has been a contentious issue in all courts of the country. Congress leader Afzal Lakhani was arrested for posting anti-Indian and pro-Pakistani messages, besides derogatory remarks against Prime Minister Narendra Modi and his late mother Hiraben Modi. The division bench of the Supreme Court, comprising Justices AS Bopanna and MM Sundresh, heard an appeal filed by Lakhani against a Gujarat High Court order that had denied him bail in the matter. 

While allowing Lakhani to participate in the trial effectively, the top court granted him bail, provided “he should restrain himself from putting any such posts on social media in future either directly or in an anonymous manner”.

In June this year, the Gujarat High Court had refused to grant him bail and the single-judge bench of Justice Nirzar S Desai observed that people who stayed in India should remain faithful to the country. The bench had noted after perusing the material presented before it that certain posts of Lakhani were abusive in nature, while some other posts had the potential to hurt the sentiments of a particular community. It further noted that there were other materials which could have a larger impact on the society. The Court further observed that a person may like or dislike a person, but it did not mean that he/she starts using derogatory and abusive language against the prime minister of the country and his departed mother. It said the language used in those posts was so insulting and derogatory that it was not possible for the Court to reproduce any of those posts in its order. The bench also noted that on overall consideration, it found that Lakhani had destabilised the peace and harmony of the society and, prima facie, the posts were agenda-driven. If such a person was granted bail, there were chances that he may commit such offences again by creating pseudo-names and fake IDs, it added. 

Lakhani had allegedly made 18 Facebook pages, in which he posted anti-Indian messages, which were of such nature that could create communal unrest in the society. The posts were allegedly targeted not just against the prime minister, but also against a particular community. It was also alleged that Lakhani used to make international calls to Pakistan and other countries. The counsel appearing for the state further submitted that Lakhani had even posted pornographic and obscene material on social media.

The Supreme Court has also played a role in getting the Lok Sabha Secretariat to restore the membership of Congress leader Rahul Gandhi, which was suspended after his conviction in a criminal defamation case. On March 23, a local court in the Surat district of Gujarat had convicted the Congress MP in a defamation case for his alleged remarks against Prime Minister Narendra Modi in April 2019. The Court had stayed the conviction on August 4 on the grounds that the trial judge did not give any other reason for awarding maximum sentence under the Representation of Peoples (RP) Act.

The bench of Justices BR Gavai, PS Narasimha and Sanjay Kumar observed that when the offence was non-cognisable, bailable and compoundable, the trial judge was expected to give reasons for imposing maximum sentence. Had the sentence been a day lesser, the provisions under the RP Act would not have been employed, the top court noted. It said though the appellate court and the High Court spent voluminous pages rejecting the stay on conviction, these aspects were not considered in their orders. The apex court, while noting that the “utterances” of Rahul Gandhi were not in good taste, observed that a person in public life was expected to exercise caution while making public speeches. The bench further suggested Gandhi to be “more careful” in future. 

On July 7, the single-judge bench of Justice Hemant M Prachchhak of the Gujarat High Court had rejected the review petition filed by Gandhi in the same case. The High Court further refused to stay the conviction and two-year jail term awarded to the Congress leader. It observed that staying the conviction was not a rule and the same must only be exercised in rare cases. The bench noted that at least 10 criminal cases were pending against Gandhi. 

The Court of Chief Judicial Magistrate HH Varma had earlier sentenced Gandhi to two years in jail and imposed a fine of Rs 15,000 after finding him guilty under Sections 499 (defamation) and 500 (punishment for defamation) of the IPC. Gandhi’s conviction under Sections 499 and 500 of the IPC, both of which warranted a maximum sentence of two years, led to his disqualification from the Parliament, under, ironically, a Supreme Court order of 2013. The apex court’s intervention led to his parliamentary privileges being restored.

On July 1 this year, the Supreme Court had granted interim bail to social activist Teesta Setalvad. The three-judge vacation bench of Justice BR Gavai, Justice AS Bopanna and Justice Dipankar Datta stayed the Gujarat High Court order, which directed Setalvad to surrender immediately before the Gujarat Police.

Earlier on the same day, the Gujarat High Court had refused to grant bail to Setalvad. The order was passed by the single-judge bench of Justice Nirzar Desai. The Gujarat Police had arrested the activist on June 25, 2022, on alleged charges that she fabricated documents to frame high-ranking officials, including the then Gujarat chief minister Narendra Modi in cases related to violence that took place in Gujarat after the Godhra train burning incident in 2002. 

Setalvad, who is also the secretary of Citizens for Justice and Peace, an organisation formed to fight for the victims of 2002 Gujarat riots, was kept in police remand for seven days and sent to judicial custody on July 2. On September 2, 2022, the Supreme Court had granted interim bail to Setalvad, directing her to surrender her passport till the matter was taken up by the High Court and ensure complete cooperation in the investigation. 

The bench of then Chief Justice of India UU Lalit, Justice Ravindra Bhat and Justice Sudhanshu Dhulia had further directed the Gujarat Police to release Setalvad on conditions, which the court deemed appropriate. The bench observed that Setalvad, a lady, had remained in custody for two months and the investigative machinery has had the advantage of custodial interrogation for a period of seven days. The top court noted that the offences alleged against Setalvad pertained to 2002 and at best, the concerned documents were sought to be produced by 2012.

On September 1, 2022, the apex court had pulled up the Gujarat High Court over its order to list Setalvad’s bail plea for hearing on September 19, almost six weeks after issuing notice in the case. Stating whether this was the “standard practice in Gujarat”, the top court had asked the Gujarat government about the material it had gathered in the past two months against Setalvad. The then CJI-led bench had further noted that there was no grave offence, such as Prevention of Terrorism Act (POTA), 2002, or the Unlawful Activities (Prevention) Act, 1967, meaning that there was no statutory mandate against the grant of bail. The Court added that a lady was entitled to “favoured treatment” in normal offences under Section 437 of the IPC, thus granting her interim bail.

The Lucknow Bench of the Allahabad High Court in September this year allowed the bail application of Ibnul Hussain who was arrested on the allegations of damaging the image of the Chief Minister of UP, Yogi Adityanath, by misusing the mobile phone of the informant. In June this year, the High Court had dismissed a petition seeking quashing of an FIR filed against the secretary of UP Youth Congress, over his alleged remark pertaining to a “love affair” and homosexual relationship between Prime Minister Narendra Modi and Founder and Chairman of Adani Group, Gautam Adani. The Division Bench of Justice Anjani Kumar Mishra and Justice Nand Prabha Shukla passed this order while hearing a petition filed by Sachin Chaudhary. 

Dr Kafeel Khan, a Gorakhpur-based doctor, was arrested under NSA in Mumbai over his allegedly provocative speech on December 13, 2020, at the Aligarh Muslim University in the backdrop of the protests against the Citizenship (Amendment) Act. He was booked under stringent NSA provisions for disturbing public order and creating fear and insecurity among Aligarh citizens. Contrary to the claims made by the district magistrate that Khan’s speech was provocative, the Allahabad High Court in its judgment held that his speech called for national integrity and unity. Subsequently, the Court set aside the detention order, dated February 13, 2020, passed by UP government, declaring the extension of detention as illegal. 

—By Shivam Sharma and India Legal Bureau

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