The Delhi High Court Monday reserved its order on the bail plea of Kanhaiya Kumar but questioned Delhi Police’s understanding of their main charge against the JNU students’ union president. The bench of Justice Pratibha Rani asked police: Do you know what sedition is?
Asking police how they defined “sedition”, the bench said, “Everybody says 124A is very serious. Do you know what it is? It can be punishable with less than three years imprisonment or only fine or can be very serious.”
When Additional Solicitor General Tushar Mehta, appearing for Delhi Police, responded that the punishment varied from fine to life imprisonment, according to the gravity of the offence, the court asked, “Does the video recording show he was raising slogans? He says he was present, but was he raising slogans?”
The judgment will be pronounced on Wednesday.
The bench also raised questions over the police investigation into Kumar’s involvement in the raising of alleged “anti-national” slogans in JNU, asking why they “waited for footage” from Zee TV instead of taking action on February 9 when the alleged incident occurred.
“Why was the FIR not filed that day itself? What were your men doing?” asked the court, while reading from the FIR and status report filed by police.
During the over three-hour-long hearing, the bench also asked pointed questions about evidence of Kanhaiya’s involvement in the alleged sloganeering.
ASG Mehta admitted that there was no specific video footage that showed the JNUSU president raising anti-national slogans but argued that the videos showed he was present at the spot.
“There is a difference between being present and participation,” the bench said.
The bench noted that the status report and FIR indicated that policemen in plainclothes, as well as the local Station House Officer (SHO), were stationed at the JNU gate at the time of the incident.
“Three policemen were there in civil dress. Don’t they know what it means? Why did they not record the incident? Were they not supposed to take cognizance of the issue?” asked the bench.
The bench also asked why the SHO had not asked for the video footage to be recorded. “What were your men doing?” asked the bench.
ASG Mehta informed the court that there was “independent evidence” of Kumar’s involvement in the alleged incident. Police informed court that “independent witnesses” had “seen” Kumar at the spot “raising anti-national slogans”.
Police said that apart from Zee TV’s footage, it relied on an “independent video” recorded on “an iPhone6” by a JNU staff member on the request of JNU’s security chief. But they were unable to produce the transcript of the video before court, admitting that the Central Forensic Science Laboratory (CFSL) had raised some objections after the phone was sent to them.
Noting that the video had allegedly been recorded by a JNU employee, the bench asked police why its details were not made available even in the status report. “Either don’t mention the document or give the details,” the bench stated.
Arguing on behalf of Kumar, senior advocate Kapil Sibal said that the offence of “sedition” could not be made out as the alleged sloganeering occurred “inside a university campus which is not a public place”.
“How can something happening inside a university campus between two factions incite people outside to create a law and order situation?” asked Sibal.
The assertion by police that there were “masked persons” present at the protest also came under question by the bench, which asked how they were allowed to leave. “Did the security guards not maintain a register of who entered?” asked the court. It also asked why police present at the JNU gates “did not take any steps” to apprehend the “masked persons”.
ASG Mehta said the case had “larger implications”. “After this incident, other similar incidents happened,” said Mehta, referring to the protests at Jadavpur and Hyderabad universities.
The ASG argued that the JNU incident had “become a rallying point for anti-national movement pan India” and that “such incidents will get a boost” if Kumar was released.
The Delhi Government’s counsel Rahul Mehra, who was given an opportunity to argue, questioned the stand of Delhi Police and urged the court to grant bail to Kumar, as there was “no concrete evidence of his involvement” in the incident.
“The FIR is based on a complaint by the general secretary ABVP at JNU to the JNU authorities regarding the event, posters of the alleged event and the Zee news video which is allegedly doctored,” said Mehra.
“He (Kumar) has been a student of JNU for the past six years. As the counsel for the state, I am praying please grant him bail,” said Mehra.
Mehra had earlier objected to a notice issued by the Delhi L-G, appointing ASG Mehta and advocates Anil Soni and Shailender Babbar as “special prosecutors” to represent police in this case.
Kumar was arrested on February 12 on charges of criminal conspiracy and sedition for allegedly raising anti-national slogans on campus during an event to mark the anniversary of the hanging of Parliament attack convict Afzal Guru.