The Unlawful Activities Prevention Act (UAPA) is notorious for its stringent bail conditions. Once booked under a terror-related provision of the UAPA, it is next to impossible to get bail.
And yet, the Supreme Court — in fact a bench headed by the present Chief Justice of India UU Lalit — granted bail to Kerala Journalist Siddique Kappan in a UAPA case.
Initially arrested over alleged "apprehension of breach of peace,” he was soon slapped with sections of the UAPA. Find more details of UP Police's case against Kappan here.
When apex court's bail order came in September 2022, Kappan had already spent nearly two years in jail — during the course of which he lost his mother, fell severely ill with COVID, was allegedly chained to a bed in a private hospital, allowed treatment at AIIMS only after significant struggle by his lawyers and his wife, and was refused bail by the Allahabad High Court and a local court in Mathura.
The apex court’s handling of this UAPA case was a win for press freedom and civil liberties, because not only had the CJI-led bench granted Kappan bail, but they had also reportedly said, during 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?”
When bail finally came for Siddique Kappan, his wife Raihana Siddique said: “I’m really happy. For two years, we have been suffering – mentally, physically, and financially. The Supreme Court granting bail, indicating there’s no substance in the case, is a huge relief.”
Siddique Kappan and his wife Raihanath Kappan.
(Special Arrangement/ The Quint)
But Raihana’s relief was short-lived. For even after 760 days of incarceration, and about two months since apex court's bail order, Kappan continues to languish in custody.
SO WHY HAS HE BEEN HELD BACK?
Turns out that in the months after his arrest by Uttar Pradesh Police in 2020, the Enforcement Directorate (ED) swooped in too. On 6 February 2021, the ED filed a chargesheet naming Kappan as an accused in a case from 2018.
Kappan was booked under Sections 3 (offence of money laundering) and 4 (punishment for money laundering) of the Prevention of Money Laundering Act (PMLA) in this case.
And so, while the Supreme Court gave him bail in the UAPA case, a special PMLA court refused him bail in this ED case on 31 October.
AND WHAT WAS THE 2018 CASE ABOUT?
In 2018, an Enforcement Case Information Report (ECIR) was filed by the ED against 22 members of the Popular Front of India (PFI). This ECIR, of course, did not name Kappan or the three others, who would go on to be arrested two years later by UP police in Hathras.
Further this 2018 case was predicated on a case from 2013. The existence of a predicate offence is mandatory for the registration of an ECIR.
Again, neither Kappan nor his co-accused were named in the 2013 case.
In conversation with Article 14, Kappan’s lawyer Ishan Baghel said:
“This ED case registered in 2018 was for the scrutiny of PFI funding. It was never related to the UAPA case registered on 7 October 2020 by UP police.”
“They have made him an accused in a 2018 case registered for some other offences related to some other case,” he added.
In fact in their plea seeking bail for Kappan in the PMLA case, his counsel even pointed out that he was not named in the FIR that was registered in 2013 (the predicate offence), and argued that he is not even a member of PFI. Further they submitted:
Total proceeds of crime estimated in connection with the 2013 case were Rs 1,36,14,291
Benefiting from 'proceeds of the crime' is the essence of the offence of money laundering
No such money was credited to Kappan’s account and Kappan had no connection with it
WHAT DID THE ED ARGUE?
However, the Special Public Prosecutor for ED said that while investigating the information pertaining to the 2013 case (in which 22 PFI activists were arrested), they learned about the arrest of Kappan and his co-accused in 2020.
Thereby, just like the UP police in the UAPA case, ED claimed that Kappan had PFI links. They also went on to allege that –
A conspiracy was hatched by purported PFI member KA Rauf Sherif and his associates "in order to visit Hathras for disturbing communal harmony, incite riots (sic) and spread terror (sic) and to fund and conduct protests for PFI/CFI and other unlawful activities"
According to Article 14, KA Rauf Sharif — the alleged “main conspirator” in this case — was granted bail by a PMLA court in Ernakulam in February 2021.
Sherif is presently lodged in Lucknow central jail because he was then arrested by the UP police in connection with the UAPA case.
SIMILAR ALLEGATIONS, DIFFERENT TREATMENT?
Chief Justice of India UU Lalit
(Photo: The Quint)
Besides, the Supreme Court has already dealt with the allegations of PFI links and Kappan's Hathras visit being a bid to incite riots. They did so in the UAPA case. At the risk of repeating the obvious: they still found it fit to grant him bail.
But the special PMLA court seems to have found the prosecution's claims (made by ED but unsurprisingly similar to those by the State of UP) to be adequate. Before refusing Kappan's bail plea, the court noted in its order:
“The accused-applicant is allegedly an activist of PFI and has relations with PFI and was also in regular touch with the office bearers and he attended PFI meetings.”
Note: Kappan has denied these allegations, submitting that the prosecution’s complaint/chargesheet is based on “false media reports” and that there is “no substantial evidence” against him.
But the court reiterated:
“It is further the case of prosecution that accused-applicant was directly indulged and involved in the use of proceeds of crime by being part of criminal conspiracy hatched by KA Rauf Sharif to visit Hathras with other accused persons for inciting communal riots and terror for which funds were transferred to the bank account of co-accused Atikur Rehman from the bank account of Ahammed Shibbili PK on the instruction of KA Rauf Sherif.”
Then the court said:
“After hearing both the parties at length and going through the material available on record, I do not find it a fit case for grant of bail.”Sessions Judge Sanjay Shankar Pandey
BUT HOW DID THE COURT EVEN ESTABLISH THE PMLA OFFENCE?
Noting that while examining bail applications, courts exercise judicial discretion by considering relevant facts and circumstances “including the need of keeping the accused in custody for the purpose of investigation”, former Allahabad High Court Chief Justice Govind Mathur told The Quint:
“Court is also supposed to keep in mind the degree of involvement of the accused in the crime concerned.”
Thereby, Justice Mathur added:
“In Siddiqui Kappan's case, the Lucknow court has mainly discussed the facts relating to the UAPA case where bail has already been granted by the Supreme Court. A reference of the case under PMLA is certainly given but no facts at all are discussed to establish an offence under Section 3 of this Act.”
Section 3 of PMLA (offence of money laundering) says: Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-laundering.
According to Justice Mathur, “the court should have examined the material on record to satisfy these ingredients.” This means that the court should have dealt with the question of whether Kappan was directly or indirectly attempting to, assisting in, was party to or actually involved in any action connected with 'proceeds of crime' (money connected to crime), and was legitimising the said proceeds as untainted.
“Unfortunately the order rejecting the bail application is silent on this. The court has discussed the alleged role of co-accused but that doesn't reflect any role of Kappan to establish any case of money laundering.”Former Allahabad High Court Chief Justice Govind Mathur
NOT IMPLICATED IN PREDICATE OFFENCE – ANOTHER ARGUMENT IGNORED
Criminal Law Advocate Kumar Vaibhaw also noted that the special court, in its order, has not even attempted to examine Kappan’s plea on the anvil of ‘triple test’ (for granting bail) —
Whether applicant is a flight risk
Can influence witnesses, or
Can tamper with evidence
(The grant of regular bail is usually contingent on this triple test.)
“It is also devoid of the relevant considerations for bail, such as period of incarceration, stage of the matter etc,” Kumar added, before pointing out:
“The sessions court has completely overlooked that Siddique Kappan was not implicated in predicate offence (FIR 276/2013) on the basis of which ED has proceeded against him.”
He was also surprised that the sessions court based its decision in a bail plea in a PMLA case on —
“speculations and conjectures pertaining to alleged PFI links, instead of examining whether an offence of money laundering is made out against Kappan or how he has directly or indirectly indulged with the proceeds of crime.”
SC'S BAIL IN UAPA CASE – ALSO IGNORED
Advocate Kumar noted that while relying heavily on allegations made in case number 199/2020 (the UAPA case) of Kappan’s purported PFI links, the court “failed to even consider that he has been granted bail by the Supreme Court in the same case.”
Even former Chief Justice Govind Mathur pointed out:
“The court should have examined the issue about the need of keeping the accused behind bars even now, especially looking to the fact that in UAPA case the apex court of the country has already granted bail.”
A JOURNALIST'S FREEDOM
With the session court’s denial of bail to Kappan in the PMLA case, once again the door to freedom has been slammed shut on his face. The forty-two year old journalist, father of two, will only leave now, if a higher court reverses this decision.
Meanwhile, even 50 days after he was granted bail in the UAPA case, the verification of Kappan’s sureties in Uttar Pradesh is not complete (as per The Hindu’s report, dated 1 November). It also took 10 days for Kappan’s lawyers to find two UP residents to stand surety to fulfil his bail conditions.
But does it even matter now? With the session court’s denial of bail to Kappan in the PMLA case, once again the door to freedom has been slammed shut on his face. The forty-two year old journalist, father of two, will only leave now if a higher court reverses this decision.
In other news, Justice DY Chandrachud is slated to take over as the Chief Justice of India in a week from now. One of his key observations in a judgment granting bail to TV news personality Arnab Goswami was:
“India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal”.
(With inputs from Article 14, Livelaw and The Hindu.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)