According to his interview with Reuters, a former co-organizer of a sit-in protest against the new citizenship law and student Sharjeel Imam, speaks in New Delhi, India December 22, 2019. The video was taken on December 22, 2019.
On May 20th, the Delhi High Court gave statutory bail to JNU scholar and student activist Sharjeel Imam in connection with a case involving allegations of sedition during the communal riots that took place in 2020. Imran was charged by the Delhi Police for sedition in Aligarh Muslim University and Jamia Millia Islamia for inflamatory speeches related to Citizenship Amendment Act (CAA), 2019 which were made in seditious manner by him as an accused under the Indian Penal Code (IPC). Subsequently, Section 13 (punishment for unlawful activities) of Unlawful Activities (Prevention) Act, 1967 was invoked against him carrying sentence up to seven years.
He has been held since January 28 last year. Hence this does not imply that he will be granted bail since he is also an accused in another bigger conspiracy matter concerning North-East Delhi riots of this year.
If this happens it would be interesting to know how “default bail” under Section 436A CrPC is different from ordinary bail as well as what circumstances are usually considered by courts while granting this “indefeasible right” according to The Hindu?
Section 434A CrPC
The inclusion of default bail provision under Section436A Cr.P.C takes care of rights of undertrials who face indefinite incarceration while undergoing trial or investigation during any period after 2005 amendment. Such detention is limited where either trial has not started yet or there are more than half remaining term towards endage bracket prescribed for criminal offences excluding those attracting death penalty. In these situations if the detainee’s personal bond is warranted and they may be released on bail without or with sureties.
However, the Court must give written reasons for refusal if it denies this statutory relief. Furthermore, when counting the time of custody, the period during which an accused obstructed proceedings is to be left out.
Interestingly, under section 167(2) Cr.P.C., default bail is available even where final chargesheet has not been furnished by the investigating agency w/in 60 days since remand for specified offenses that may be extended to 90 days at a time.
The Supreme Court’s judgment in Satender Kumar Antil v CBI in July 2022 stated categorically that such cases could even bypass making of a bail application particularly if the delays were not attributable to him. It also emphasized that this denial of default relief should be sparingly done as it enables personal freedom sources from Article 21 of Indian Constitution. Notably, this was clarified by Bench consisting of Justices Sanjay Kishan Kaul and MM Sundresh as would extend this relief to various special statutes like UAPA, PMLA and NDPS Act where specific provisions contradicting it are missing.
Consequently, the apex Court displayed great anger in March 2023 when it came to its knowledge that the District Judiciary was not following the guidelines laid down in Satender Kumar. “If such orders are being passed by some Magistrates it may even require some judicial work to be withdrawn and the magistrate to be sent to judicial academies for upgradation of their skills,” warned the Court while indicating that all these non-compliance would result in removal from office and subsequent training.
The Supreme Court reiterated in Vijay Madanlal Choudhary and Ors v. Union of India and Ors (2022) that default bail which is provided under Section 436A of CrPC would also be applicable in PMLA cases where stringent provisions make getting bail nearly impossible.
Then, after he was denied bail on February 17 by a Delhi court, Mr Imam went to the High Court; this followed a January 30 directive from the High Court, asking the Trial court to quickly decide on his application for bail.
During that time, in 2022, charges had been framed against him by trial court student leader under Sections 124A (sedition), l53B (imputations prejudicial to national integration), 153A (promoting enmity), 505 (statements conducing to public mischief)of IPC and section13(Punishment for Unlawful Activities) of UAPA. According to prosecutors, at Jamia Millia Islamia University and Aligarh Muslim University Mr Imam gave provocative speeches during protests against CAA. He allegedly asked protesters at that time to cut off Assam and rest of north east India from rest of country.
Before The scholar argued before the High Court that he had already served four years out of maximum seven years imprisonment so therefore he qualifies for statutory bail under Section 436A CrPC. In addition, he submitted that because in May 2022 the Supreme Court stayed the operation of Section 124A of the IPC, there was no sedition case against him. Moreover, it was reported to the court that under UAPA he was not charged for more than seven years.
Separately, a division Bench of Justices Suresh Kumar Kait and Manoj Jain gave him bail considering also the period he has already incarcerated in.
This is because his speeches and other activities may not have contained any exhortation to people to pick up weapons or kill but it caused public mobilization which “may be said” to be “the main reason” behind 2020 Delhi riots as ruled by the trial Court earlier while dismissing Mr. Imam’s bail plea. In addition , [Imam]’s different speeches were so powerful that they captured the mind of the people of a particular community and incited them to take part in disruptive activities which finally resulted into riots,” read an order adding “normal dictionary meaning”.
