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Supreme Court gave Kerala journalist Siddique Kappan bail, so why is he still in jail?

Siddique Kappan was arrested along with three others in October 2020 while he was on his way to Hathras in Uttar Pradesh, where a Dalit woman had died after allegedly being raped.

Siddique Kappan was booked by the police under provisions of the UAPA and accused of attempting to create unrest and instigate protests in connection with the incident.

Almost two years after he was arrested under the anti-terror law, the Unlawful Activities (Prevention) Act (UAPA), by Uttar Pradesh Police, who claimed that Siddique Kappan was linked to the radical Popular Front of India (PFI), the journalist from Kerala was granted bail by the Supreme Court on September 9.

However, Kappan continues to remain incarcerated because of a case of money laundering that has been registered against him by the Directorate of Enforcement (ED).

Why has Siddique Kappan not been released from jail?

Following the SC granting him bail, a court in Lucknow issued release orders for Kappan in connection with the case registered against him by UP Police. The UP Police had arrested him along with three others in October 2020 while he was on his way to Hathras in Uttar Pradesh, where a Dalit woman had died after allegedly being raped.

He was booked by the police under provisions of the UAPA and accused of attempting to create unrest and instigate protests in connection with the incident.

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While ordering his release, Additional Sessions Judge (ASJ) Anurodh Mishra had directed Kappan to furnish two sureties of Rs 1 lakh each, and a personal bond of the same amount.

However, the jail authorities did not release him owing to the ED case that is pending against him. “Kappan will continue to remain in jail as a case being probed by the Enforcement Directorate is still pending,” DG Jail PRO Santosh Verma had told PTI then.

It is settled law that an accused has to seek and receive bail in all cases registered against him — only then he can be released from prison.

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What is the ED’s case against Siddique Kappan?

Following the arrest by UP Police, the ED opened a money laundering investigation against the journalist. In a chargesheet filed against Kappan and four office bearers of the PFI in the case in February 2021, the ED that KA Rauf Sherif, the national general secretary of the Campus Front of India (CFI) raised funds through PFI members in the Gulf, and channeled the money into India through fraudulent transactions.

The CFI is an affiliated organisation of the PFI. It was among the front organisations of the PFI that was named in the Home Ministry notification of September 28, which declared these outfits unlawful associations under the UAPA.

KA Rauf Sherif had been arrested by the ED on December 12, 2020. Along with Kappan and Sherif, the ED chargesheet named Atikur Rahman, national treasurer of CFI; Masud Ahmed, the Delhi general secretary of the CFI; and Md Alam, a member of the CFI/PFI. These three men had travelled with Kappan during the Hathras protests.

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While the ED’s prosecution complaint (equivalent to a chargesheet) was limited to the Hathras case, in an official statement, it claimed: “This ‘proceeds of crime’ amounting to around Rs 1.36 Crore was obtained as a result of criminal activity relating to the offence of criminal conspiracy under section 120-B of IPC and part of it was used by PFI/CFI office bearers/members/activists in India for their continuous unlawful activities over time which included, but were not limited to, funding of anti-CAA protests, inciting violence and fomenting trouble which led to Delhi riots in the month of February 2020; and in respect to the more specific incident investigated in this Prosecution Complaint, which was the purported visit of PFI/CFI to Hathras with an intent to disturb communal harmony, incite communal riots and spread terror.”

It also alleged that part of this money was used for the purchase of land, and was thus parked to enable its future use by PFI/CFI. In its prosecution complaint, the ED claimed that KA Sherif funneled funds to Masud Ahmed and Atikur Rehman. It was using these funds, ED has claimed, that a car was bought by Masud for Rs 2.25 lakh to travel to Hathras 15 days before their arrest by UP Police.

“Further, it is revealed that more than Rs 100 Crore have been deposited in the accounts of PFI over the years, and that a very large part of the same has been deposited in cash. The source and disbursal of these funds is under investigation. PFI has been continuously indulging in various scheduled offences under PMLA ever since the Narath arms training case of 2013 investigated by the NIA in which members of PFI/SDPI were convicted of ‘organising a terrorist camp and entering into criminal conspiracy to impart training to the youth in use of explosives and weapons, with an intention to prepare them for terrorist activities’,” the ED said.

What are the provisions for bail under the PMLA?

Under the PMLA, it is generally difficult to secure bail. The law stipulates that the court will not grant bail unless it is satisfied that the person is not guilty.

Section 45 (1) of the PMLA says, “…where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs.”

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The provision has been criticised for presupposing trial at the stage of bail and was struck down by the Supreme Court in 2017. However, a Bench led by Justice A M Khanwilkar (now retired) recently restored the provision, and upheld other contentious provisions of the Act as well.

What did Supreme Court say while granting bail to Siddique Kappan?

Questioning the UP Police claim that literature meant to incite riots had been seized from the vehicle in which Kappan was travelling, Chief Justice of India U U Lalit said, “Every person has a right to free expression. He is trying to show that the (Hathras) victim needs justice, and raises a common voice. Will this be a crime in the eyes of law?”

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The Bench said it was granting bail to Kappan “considering the length of custody undergone by the appellant and the peculiar facts and circumstances of the case”.

The Bench asked Kappan to deposit his passport with the investigating agencies before his actual release, and said he “shall not misuse his liberty in any manner nor shall he get in touch with any of the persons associated or connected with the controversy in question”.

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In the Supreme Court, Kappan had challenged the August 2, 2022 order of the Allahabad High Court dismissing his application for bail.

First published on: 05-10-2022 at 02:41:25 pm
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