He raised voice on Hathras victim… Will this be a crime: SC gives bail to Kappan

The CJI, heading a bench that included Justices S Ravindra Bhat and P S Narasimha, made these remarks after Senior Advocate Mahesh Jethmalani, who appeared for the State, said that Kappan and others were going to Hathras with a “toolkit” to create riots.

Jethmalani was asked what part of the seized material was provocative.

Justice Bhat pointed out that protests had occurred near India Gate following the December 2012 Delhi gangrape case. “You know, after that there was a change in the laws,” he told Jethmalani.

In its order, the bench said “at this stage, we refrain from dealing with and commenting on the progress of investigation and the materials gathered by prosecution in support of its case as the matter is set to be taken up at the stage of framing of charge”.

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”.

It directed that he be produced before the trial court concerned within three days and the trial court shall release him on bail on conditions it deems fit to ensure his presence and participation in the matter pending before it.

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”.

Kappan will have to stay in Delhi for the first six weeks after his release on bail and sign a report at the local police station every Monday. Thereafter, he will be at liberty to go to Kerala where he will report to the local police station every Monday.

Following the Supreme Court order, Kappan’s wife Raihana Siddique told The Indian Express: “Despite the struggles, I was able to run behind this, and I was able to do it because I had truth on my side. I know Kappan is innocent.”

“I am happy he has got bail. We have been running behind this for two years. It is not a small matter that the government and the Uttar Pradesh police kept him behind bars for two years… Our life, Kappan’s difficulties… This is not something that we can forget quickly… I am happy that the Supreme Court has granted bail in the UAPA case,” she said.

“We have not got the order so far; we are waiting for one. In the ED (Enforcement Directorate) money laundering case, we have applied for bail. That’s in the Lucknow court. We are hoping he will be free soon,” she said.

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

The UP Police had said it seized three sets of a 17-page pamphlet from the vehicle carrying Kappan and others and that “a perusal of the pamphlet would demonstrate that it is nothing more than a ‘Rioting 101’ for rioters”, teaching them how to conceal themselves from police, which riots to participate in, and to “recognise the place you are rioting in”.

Asked what exactly had been found against Kappan, Jethmalani said that in September 2020, Kappan had attended a PFI meeting where it was said that funding had stopped and it was decided that they will go to sensitive areas and incite riots.

“On October 5, they had decided to go to Hathras to incite riots. He was funded with Rs 45,000 to create riots. He claimed to be accredited to a newspaper. But we have found that he was accredited to the official organisation of PFI… He was there to incite riots. It’s a little bit like what happened in Bombay in 1990,” Jethmalani said.

The bench then asked “what was found on his person or around him”. Jethmalani replied that some ID cards and literature had been recovered.

The CJI asked if explosives were also found. Jethamalani replied in the negative. The bench sought to know if the literature was found in Kappan’s custody.

Senior Advocate Kapil Sibal, appearing for the accused, said the material was allegedly seized from the car.

The bench said, “So, at best, you can say this man was travelling in a car, and he was apprehended with three others, there was some literature in the car.” It asked if the others were also linked to the PFI.

Jethmalani said they are accused in other riot-related offences.

The UP police had said Kappan was travelling with “Atik-ur-Rahman, national treasurer of CFI (Campus Front of India, the student body of the PFI), accused in relation to Muzaffarnagar riots… Masood Ahmad, former general secretary of Delhi chapter of CFI, accused in relation to Bahraich riots” and driver Alam, “brother-in-law of” one “Danish Khan… an accused in relation to the Delhi riots”.

Jethmalani said the accused were creating disaffection over the rape of a girl.

The bench again asked “has he done anything in furtherance of the literature”. When Jethmalani said police have statements of the co-accused, the CJI wondered how that can be used as evidence against Kappan. Jethmalani said, “we are trying to get an approver”.

The bench asked if Kappan had used the seized literature. “It was nipped in the bud,” Jethmalani said, adding that “the literature was a toolkit for riots”.
Sibal said the literature was only “Justice for Hathras Girl”.

To the bench’s query on what part of the material was provocative, Jethmalani said, “What it indicates is they were on the way to Hathras. This is the kind of literature they were going to distribute amongst the Dalit community members… This is a propaganda, which the Dalits themselves are not doing. The PFI is doing. There are directions on how to send emails, social media campaigns etc.”

The court asked if there was any document to show that he must indulge in rioting. Yes, said Jethmalani, adding “He is coming to Hathras with a toolkit… There are instructions on protection during riots, what to wear, what not to wear… There are instructions on how to tackle tear gas, police”.

Sibal pointed out that some of the material being referred to was from the Black Lives protests that happened in the US. “This is not prosecution, but persecution,” he said..

The CJI too remarked, “This appears to be … from some foreign country.”

Newsletter | Click to get the day’s best explainers in your inbox

To a query whether there was any probability of the trial culminating soon, Jethmalani said, “We are attempting to expedite the trial.”

Referring to his statement about attempts to get an approver, the bench said, “If you say your attempts to make somebody an approver is on, it means the matter is not ripe for trial.” Jethmalani replied that it will be done soon.