Not only had the CJI UU Lalit-led bench of the Supreme Court granted him bail despite the stringent UAPA provisions he was booked under, they had also reportedly said during the course of the hearing:
"Every person has a right to free expression. He is trying to show that the (Hathras) victim needs justice and is raising a common voice. Will this be a crime in the eyes of the law?”
On 23 August, the Allahabad High Court granted bail to 31 year old Mohammad Alam — a cab driver and Kappan’s co-accused in the UAPA case. The High Court had reportedly stated that the allegations against him are prima-facie not true and that “no such incriminating material was recovered” from his possession.
Why PMLA Keeps Kappan & Alam in Jail
The Quint has learned that Kappan and Alam's arrests have been recorded in an ongoing Prevention of Money Laundering Act (PMLA) case, and while their lawyers have applied for bail in the PMLA case, they are yet to receive it.
ALLEGATION AGAINST KAPPAN
The allegation is that Kappan and his co-accused received money from the Popular Front of India (PFI) in a bid to incite riots in Hathras.
According to a report by The Hindu, the Enforcement Directorate (ED) had booked Kappan and his associates Masud Ahmed, Athq-ur Rehman and Mohammad Alam under PMLA amid allegations that one Rouf Sharif, a student wing leader of the PFI, had “funded” their trip to Hathras.
Senior advocate Mahesh Jethmalani, representing the state and opposing Kappan’s UAPA bail plea, had further told the Supreme Court that an amount of Rs 45,000 was allegedly received by Kappan for inciting riots.
But in response to these allegations, Ishan Baghel, the lawyer fighting Kappan's PMLA case said that the money being dubbed as tainted, was in fact his legitimate salary (for his journalistic work) and the only reason it was deposited via cash at an ATM was because the lockdown was underway then and most services had been hindered.
Meanwhile, Kappan's bail application categorically states:
Siddique Kappan is not a member of PFI or its associated organisation Campus Front of India (CFI)
No proper investigation has been conducted regarding the applicant accused
The ED complaint relies on false media reports, conjectures and surmises
ALLEGATION AGAINST ALAM
Meanwhile, Kappan's co-accused Alam has reportedly been accused of receiving 2.25 lakh rupees (alleged proceeds of crime) and then paying the amount to another individual for the purchase of the vehicle which he was driving at the time of his arrest in Hathras.
But the Allahabad High Court addressed these allegations in their order granting bail under the UAPA to Alam.
“After careful examination of the material available on record, the only evidence against the appellant on which the prosecution hammered much, is the payment of Rs.2,25,000/- made to one Anees for buying the vehicle he was driving at the time of the incident," the court noted before adding:
"The learned A.G.A. argued that the money which he paid was earned by him out of terrorist funding as the economic condition of the appellant was not sound enough to pay for the same. (sic)"
But the court, thereby, went on to also state:
Alam's counsel countered the argument and explained that Alam had borrowed the money from his cousin Mehboob Ali
The cousin thereby, filed an affidavit stating the same and also explaining the source of money
No questions were raised on the Mehboob Ali's affidavit in which he explained how he resourced the amount to his cousin Alam
"Secondly, no such proceeds of crime was found by the Special Court...Ernakulam while deciding the bail application of K.A. Rauf Sherif, who is alleged to be the prime accused, wherein, vide order dated 12.02.2021," the court further noted.
Speaking to The Quint, Alam's lawyer Shaifan Sheikh, said
"Alam has no skill other than driving. It was his bread and butter."
Further, according to him: "Alam is being targeted because of his religious identity."
A Couple of Points to Remember
Kappan and Alam's respective bail plea in the PMLA case will be heard in the coming days. But before we plunge into that, a couple of existing facts require quiet reflection–
1) Right before his retirement, CJI NV Ramana had permitted review of certain aspects of the top court's recent PMLA judgment (Vijay Madanlal Choudhary & Ors). This included the aspect pertaining to reversal of burden of proof and the (absence of) presumption of innocence.
As per the Vijay Madanlal Choudhary judgment (aspects of which are now to be reviewed), the burden of proof in a PMLA case lies with the accused who is pleading for bail. This means that the accused has to prima facie establish that they are not guilty.
Now, helpfully, the top court has agreed that this provision warrants a relook.
Even though the PMLA is a special law on which the ordinary tenets of criminal law (like 'innocent until proven guilty') do not apply, the Supreme Court has essentially implied while agreeing to review the judgment that this aspect of the judgment may be cause for concern.
2) Kappan and Alam were granted bail by the Supreme Court and the Allahabad High Court (respectively) in their UAPA cases. What this also means is that despite the infrequency and unease of bail under terror-related provisions of UAPA, both constitutional courts found it appropriate to grant bail to the appellants; and that both constitutional courts were okay with the idea of these two leaving jail and returning to their families.
The authority slated to adjudicate their bail pleas in the PMLA case should ideally keep both these points in mind.
The court should remember that provisions upheld by the PMLA judgment, that directly impact the accused in this case, are presently under challenge and also the fact that the Supreme Court and a High Court found it fit to release the two of them on bail, despite the stringent nature of the UAPA. Perhaps then, while exercising their discretion, the court may decide to tilt more towards liberty of the individual than a stringent interpretation of the law.
When Journalists are Inundated With Cases
Another point warrants mentioning here – given the rate at which journalists, activists etc are being smothered with a barrage of cases, under different sections, different acts, in different forums, one on top of another like layers in a club-sandwich, it perhaps becomes pertinent for the constitutional courts (especially the Supreme Court) to take the totality of these events into account.
Maybe it is time for them to pause, cast a sweeping glance, remember the several instruments that can be employed to restrain freedom, and try to ensure that an individual's access to liberty, when they feel it is high time, remains truly unhindered. And, there is precedent for this –
Most recently, when Alt-News co-founder Mohammad Zubair was inundated with an array of cases pertaining to his tweets, not only did a Justice DY Chandrachud-led bench give interim bail to Zubair, transfer all the cases to Delhi to be investigated collectively, spare him undue rounds of several courts in several states, extend the protection to his future tweets as well, uphold his right to tweet and write, but they also, in their judgment, reaffirmed what they had said in the Arnab Goswami case:
"Criminal law and its processes ought not to be instrumentalised as a tool of harassment.”
And perhaps when privy to so many tools of potential harassment, the top court can take a firm pro-liberty stand more frequently. Otherwise, these rounds of court-kacheri can be as ceaseless as they are convoluted. And life can, on auto-pilot, continue to slip away for the accused who remain behind bars, despite what the courts of the country may want for them.
Alam's wife Bushra, 30, recently told Maktoob Media that her husband is "just a cab driver" who "was not aware that this one trip would cost so much.”
(With inputs from LiveLaw, Bar and Bench, Maktoob Media and Harshit Anand.)
(Corrigendum: A previous version of this story stated that the PMLA case essentially emanates from the UAPA case against them – with the offence under the UAPA being the predicate offence. However, a perusal of the Session Court's order denying bail to Siddique Kappan on 1 November indicates that the predicate offence is a different matter, registered under FIR 276/2013, and Kappan and Alam were not even named in that FIR.)