Bail for Munawar, But Will Friends Sadaqat, Nalin Get Justice Too?
Whether by applying SC’s Arnesh Kumar judgment independently, or principle of parity, both deserve bail from the HC.
“Sadaqat is in jail and is waiting to get out like his friends did,” says Ashar Warsi, the lawyer representing one of Munawar Faruqui’s friends who is still languishing in jail.
Following a month-long incarceration, comedian Munawar Faruqui was granted ad interim bail on 5 February by the Supreme Court.
Two of his co-accused – Prakhar Vyas and Edwin Anthony – were thereafter released on interim bail by the Madhya Pradesh (MP) High Court on 12 February, which said they were “entitled for temporary bail maintaining parity in the light of the order dated February 5, 2021, passed by the Supreme Court.”
However, for Sadaqat Khan (26) and Nalin Yadav (24), even 55 days after their arrest, the light at the end of the tunnel is still out of reach.
Advocate Anshuman Srivastava, fighting the case on behalf of Yadav, tells The Quint that the MP High Court had rejected Faruqui and Yadav’s bail pleas together. However, now that the apex court has granted interim bail to Faruqui, they have filed a second bail application in the high court, pleading parity.
Advocate Ashar Warsi, state head of the Indian Civil Liberties Union (MP), clarifies that they have also moved the MP High Court asking for interim bail for Sadaqat Khan. “Another lawyer had filed a plea at the Sessions Court for grant of regular bail to Sadaqat. That was denied by the Sessions Court.”
Both Khan and Yadav’s HC applications, however, are yet to be listed for hearing.
“It should be done this week,” Warsi believes.
NOTE: Faruqui, Nalin Yadav and three others were detained on 1 January, after Faruqui’s show was interrupted by BJP MLA Malini Gaur’s son Eklavya Singh Gaur. They were arrested the next day.
Sadaqat Khan was detained and arrested on 2 January. He was not named in the FIR and was arrested on the accusation of being a co-organiser of the event. Khan’s family claims he was allegedly only there to support his friend Munawar.
Why Nalin Yadav & Sadaqat Khan Have Been Denied Bail Till Now
On 28 January, Justice Rohit Arya of the Madhya Pradesh High Court had rejected the bail application of Munawar Faruqui and Nalin Yadav.
The high court at the time had held that no case for bail had been made out, and that:
“The evidence/material collected so far, suggest that in an organised public show under the garb of standup comedy on commercial lines, prima facie; scurrilous, disparaging utterances, outraging religious feelings of a class of citizens of India with deliberate intendment, were made by the applicant.”
However, soon after, on 5 February, Faruqui was granted ad interim bail by the apex court, which took note of his lawyers’ arguments that relevant guidelines for arrests laid down in the Code of Criminal Procedure and the Supreme Court’s Arnesh Kumar judgment, had not been followed.
That bail order, though, was seemingly of no consequence to the District and Sessions Court, Indore, which rejected Khan’s second bail plea on 9 February, saying:
“It cannot be said that the circumstances have changed just because the co-accused Munawar Faruqui has been granted interim bail by the apex court.”
Legal Experts Disagree With Reasoning, Cite SC’s Arnesh Kumar Judgment
Senior advocate Sanjay Hegde did not agree with this reasoning, arguing that “the Session Court’s reading of the matter appears to have been over-technical.”
A similar view was taken by senior advocate Saurabh Kripal, who had appeared as Munawar Faruqui’s counsel in the apex court. He told The Quint, “To hold that interim bail granted by the highest court of the land does not amount to a change in circumstances is an error. Interim bail was granted on a legal principle quoting established legal precedent. The trial court ought to have addressed the issue highlighted by the Supreme Court rather than brushing it aside.”
Supreme Court advocate Shadan Farasat also said, “It does not matter whether Munawar’s bail was interim or not. Bail is bail on a certain legal ground.”
Farasat recalled how the Supreme Court order granting bail to Faruqui referred to Kirpal’s argument about the Arnesh Kumar judgment.
“The Arnesh Kumar judgment of the SC says if an offence is punishable below 7 years, then you should not arrest normally. So arrest is an exception in cases where the alleged offence is punishable with imprisonment for less than 7 years. That is the basis with which SC has granted bail to Munawar Faruqui that that was not followed . That logic applies equally to the other two (Sadaqat and Nalin), because the charges are the same.”Shadan Farasat, Supreme Court advocate
In its Arnesh Kumar judgment, the Supreme Court clarified that the police had to follow the procedures for arrest specified in Section 41 and 41A of the Code of Criminal Procedure, when making arrests.
As explained by Shadan Farasat, if the maximum punishment for an offence is less than seven years, then rather than arresting a person, the police officer is supposed to issue a notice directing the accused to appear before them (Section 41A).
It is obligatory for the accused to appear before the police officer, and as long as they comply with the terms of the notice, under the law, they are not to be arrested. If the police nevertheless feel that arrest is necessary, they have to provide specific reasons for the same, which are to be recorded.
As the maximum punishment for the most serious offence Munawar and the others had been booked under was three years’ imprisonment, the police were required to follow this procedure.
However, it had not been followed in the case, as Faruqui’s lawyers had been able to establish in their petition, which the apex court took notice of when granting him ad interim bail. The bench also noted that the allegations in the FIR had been argued to be vague.
Why Sadaqat Khan and Nalin Yadav Should Get Bail
Here are the sections of the Indian Penal Code (IPC) under which the FIR was filed against Munawar Faruqui and the other four:
As mentioned above, none of the offences under which Faruqui and his associates have been charged, even the lead offence under Section 295A, are punishable by more than three years.
All the accused are therefore entitled to bail on the basis of the Arnesh Kumar guidelines. Saurabh Kirpal explained to The Quint that even though the Supreme Court’s observation about the relevance of the principle to this case was a prima facie one, it had been expressly recorded in an order and therefore had great weight.
The Indore Sessions Court was therefore wrong to reject bail for Sadaqat Khan, as “even an indication to that effect by the Supreme Court is sufficiently binding on the lower courts.”
The Arnesh Kumar guidelines would have been sufficient grounds for bail for the other accused regardless of whether or not Faruqui had got interim bail from the Supreme Court.
However, now that he has got interim bail on this basis, the argument for the others becomes even stronger given the principle of parity.
As per the principal of parity, similar sentences are to be awarded in similar cases. This applies at all stages of a case, from bail, to conviction. Indeed, as mentioned earlier, this principle was cited by the MP High Court when it granted interim bail to Prakhar Vyas and Edwin Anthony.
As Kirpal explains:
“The fact of the matter is the moment the Supreme Court gives bail to Munawar on the basis of a principle of law – in this case, that the procedure of arrest has not been correctly followed – the same principle will automatically apply, to everybody else.”
Thus, there is no reason that Sadaqat Khan and Nalin Yadav should not now be allowed to walk out of jail on grounds of parity.
What Happens Now?
Sanjay Hegde is confident that the principle of parity will mean that Khan and Faruqui will get bail if they move the MP High Court.
“It does appear that no case was made out even against Munawar, because he did not speak (the contentious jokes). So obviously, as far as the others are concerned, they stand at least on the same if not better footing...I have no doubt that the MP High Court will take into account that the SC has now granted bail to Munawar. And it has, in fact, done so in other cases.”
Both he and Saurabh Kirpal agree that nobody should have been incarcerated in this case, with Kirpal saying: “I hope they all get out soon. It’s a travesty of justice.”
Ashar Warsi, who has moved the MP High Court for Sadaqat, agrees with Hegde’s assessment, and is “positive that Sadaqat and Nalin will be given justice by the Honorable High Court.”
In the event that the high court does not grant them bail for some reason, they could still approach the Supreme Court, and Hegde believes there is no reason why the apex court will not grant them release on similar terms as Faruqui.
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