Allahabad High Court quashes trial court order framing charges against Siddique Kappan; tells trial judge to decide discharge plea first

A single-judge bench was ruling on a petition filed by Kappan against a trial court's order whereby it framed charges against him while passing no orders on the application filed by him seeking discharge from the case.

—-

THE Allahabad High Court has quashed the trial court's framing of charges against Kerala-based journalist Siddique Kappan, who was arrested in October 2020 by the Uttar Pradesh police on his way to report on the Hathras gang-rape case.

Justice Prakash Singh directed the trial judge to first decide the application filed by Kappan on December 19, 2022, under Section 227 of the Code of Criminal Procedure (CrPC) seeking discharge from the case.

Section 227 provides that "[i]f, upon consideration of the record of the case and the documents submitted therewith, and after hearing submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Justice Singh said that "in the order of framing of charges, certain illegalities and ambiguities are apparent and therefore, the order dated December 19, 2022 prima-facie, seems to be unsustainable and thus the order dated December 19, 2022 is hereby set aside".

Justice Singh was ruling on a petition filed by Kappan against the trial court's order whereby it framed charges against him while passing no orders on the application filed by him seeking discharge from the case.

Justice Singh was of the view that prima facie the advocate for Kappan was present in the trial court on December 19, 2022, but he was not heard.

"Considering the submissions of learned counsel for the parties and after perusal of the material placed on record, it is evident that an application for discharge was moved by the present applicant on December 19, 2022 and from perusal of the order dated December 19, 2022, by virtue of which charges were framed, it reveals that the discharge application dated December 19, 2022 was neither accepted nor rejected by the court. Further, the noting on the order sheet discloses that the counsel for the applicant was present in the court, but it prima facie seems that he was not heard. This court has also noticed the fact that one Rama Shanker Dwivedi, advocate, was also appointed as amicus curiae on December 19, 2022 itself though there was no occasion for such appointment," Justice Singh wrote.

Kappan argued that the trial court, without providing the prosecution with the police report and other requisite documents in compliance with Section 207 of the CrPC, proceeded in the matter and fixed December 16, 2022, for framing of charges. Since the accused persons were not summoned from jail, the matter was adjourned to December 19, 2022, when the trial court decided to frame the charges. Kappan contended that the trial judge could not have framed the charges without deciding his application seeking discharge from the case. He also argued that the order for framing of charges lacked application of mind.

On December 23 last year, the Allahabad High Court granted bail to Kappan in a case lodged by the Directorate of Enforcement under the Prevention of Money Laundering Act, 2002 (PMLA).

Earlier, in September last year, the Supreme Court had granted him bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA) in the same case.

Kappan is yet to walk out of jail despite bail orders in his favour. His sureties, which are preconditions for the release, are yet to be verified by the State authorities.

Kappan and his co-accused were chargesheeted on April 2, 2021, under Sections 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 124A (sedition) and 120B (punishment of criminal conspiracy) of the Indian Penal Code, Sections 65 (tampering with computer source documents) and 72 (penalty for breach of confidentiality and privacy) of the Information Technology Act, and Sections 17 (punishment for raising funds for terrorist act) and 18 (punishment for conspiracy, etc.) of the UAPA.

The Uttar Pradesh Police alleged that Kappan and the three other accused persons who were traveling with him were part of a "conspiracy" to inflame religious enmity over the Hathras rape case.

Click here to view the Allahabad High Court's full order.