Anti CAA speech: Allahabad HC asks for UP govt response to Dr Kafeel Khan’s petition seeking to quash chargesheet and cognisance order against him

THE Allahabad High Court Tuesday issued notice to the Uttar Pradesh government on a petition by Dr. Kafeel Khan seeking to quash the charge-sheet against him for his alleged inflammatory speech delivered at the Aligarh Muslim University (AMU) against the Citizenship (Amendment) Act, 2019 in December 2019.

A single-judge bench of Justice JJ Munir, vide the notice, sought a response from the UP government.

Senior advocates Dileep Kumar and Nazrul Islam Jafri, for Khan, argued that the magistrate took cognisance of the charge-sheet for the alleged offences 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), 153B (Imputations, assertions prejudicial to national-integration.) and 505(2) [Statements creating or promoting enmity, hatred or ill-will between classes] of the Indian Penal Code (IPC) in the absence of a requisite sanction under Section 196 of the CrPC.

"It is conspicuous to aver here that the order of taking cognizance impugned in the present case without prior sanction from the central or state government is wholly without jurisdiction and is nullity in law. Thus the order impugned of taking cognizance and the entire proceedings initiated pursuant thereof against the applicant in the present case is wholly without jurisdiction nullity and unsustainable", the plea stated.

The plea also argued that a perusal of the entire speech did not disclose hate speech and no ingredients to attract Sections 153A, 153B and 505(2).

"In the present case it is axiomatic from the perusal of the entire speech that there is no actual utterance of words which reflects the intent and which may result in promoting disharmony or feeling of hatred and enmity between the religious community thus the basic ingredient of offence is absence in the present case as such the continuation of the criminal proceedings under such offence u/s 153-A, 153-B, 505(2), 109 I.P.C. is abuse of process of law.", the plea averred.

This is the same FIR on the basis of which Dr Kafeel was detained under the National Security Act (NSA) for seven months and later released by the high court after it quashed the detention calling it bad in law.

The high court had then observed that a complete reading of the speech given by Dr Kafeel at AMU on which the detention was based, prima facie, did not disclose any effort to promote hatred or violence. Nowhere did it also threaten the peace and tranquillity of the city of Aligarh, it observed.

In the appeal filed by the UP government, though the top court refused to interfere with the high court's order, it clarified that the latter would not influence the criminal prosecution against Dr Khan.