The Allahabad High Court on Monday quashed trial court's order framing charges against Kerala journalist Siddique Kappan under the Indian Penal Code (IPC) and Unlawful Activities (Prevention) Act (UAPA) [Sidhique Kappan v State of UP].
Single-judge Justice Shree Prakash Singh further directed the trial court, Lucknow to hear afresh Kappan's discharge application first and pass orders on the same.
The order was passed after noting that the trial court had not heard Kappan's discharge application and its order of December 19, 2022 framing charges, suffered from some illegalities and ambiguities.
"Resultantly, the matter is remitted back to the trial court for deciding the discharge application of the applicant dated 19-12-2022 afresh. For the purpose of hearing on the application for discharge dated 19-12- 2022,the concerned parties are directed to appear before the trial court on 27-1-2023. Counsel for the applicant shall also remain present before the trial court on the said date and after hearing the parties, the trial court shall proceed in the matter," the Court directed.
The parties or their counsel shall not seek any adjournment on January 27, the Court added.
Kappan, a reporter for Malayalam news portal Azhimukham, and secretary of the Delhi unit of the Kerala Union of Working Journalists (KUWJ), was arrested along with three others in Uttar Pradesh in October 2020, while on his way to Hathras to report on the gang-rape and murder of a 19-year-old Dalit girl.
He was then booked under the UAPA and later under the PMLA.
In the UAPA case, he was denied bail by lower courts and the Allahabad High Court, before the top court granted him relief.
On December 23, High Court had granted bail to Kappan in a case initiated against him by the Enforcement Directorate (ED) under the provisions of the Prevention of Money Laundering Act (PMLA).
In the present case, application under Section 482 (inherent power) of Code of Criminal Procedure (CrPC) was filed before High Court with a prayer to quash the order dated December 19, 2022 passed by the special NIA court (trial court) in Lucknow in a case after first information report filed under various sections of IPC and UAPA.
The application further prayed to direct the special court to decide the discharge application moved on December 19 on merit, after affording opportunity of hearing to him.
Senior advocate IB Singh along with advocates Ishan Baghel and Mohd Khalid appeared for Kappan.
At the outset, the High Court noted that, it was evident that an application for discharge was moved by Kappan on December 19, 2022.
However, the order of the special NIA court passed on same day revealed that the discharge application was neither accepted nor rejected by the court but it had proceeded to frame charges against Kappan.
The High Court noted that the order sheet disclosed that the counsel for the applicant was present before the special court, but it prima facie seemed 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 19-12-2022 itself though there was no occasion for such appointment," the High Court said.
Senior Advocate appearing for Kappan submitted that several applications were moved for compliance with Section 207 (supply copy of police report and other document) of CrPC and ultimately on January 7, 2022, only 106 pages were provided to the applicant and most of the copies provided were illegible.
Thereafter, the applicant moved applications on April 21, 2022 and also on September 23, 2022 before the trial court for ensuring compliance of Section 207 of CrPC, stated the counsel.
Co-accused, Firoz was provided as many as 4,872 pages but was deprived of the same, it was submitted.
He further contended that on December 19, Kappan had moved a discharge application through his counsel before the trial court.
But the trial court without considering the application for discharge, proceeded to frame charges.
The single-judge observed that it is settled law that if after due considerations, two view are possible and if one of them gives rise to the suspicion, which is distinguished from grave suspicion, the trial judge is empowered to discharge the accused without going into the question as to whether a case for trial has been made out by the prosecution or not.
In the present case, the High Court said that the order by special court framing charges had some illegalities.
"It is settled proposition of law that the trial court has to make every endeavour to keep the trial fair but 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 unsustainable and thus the order dated December 19, 2022 is hereby set aside," the Court ordered.