The Lucknow Bench of the Allahabad High Court admitted an application filed by journalist Siddique Kappan, through his wife, Rayhanath Kappan, seeking to quash the “patently illegal prosecution sanctions” to proceed against Kappan under The Unlawful Activities (Prevention) Act , 1967.
While admitting the application on Friday, February 18, 2022, Justice Karunesh Singh Pawar directed the advocate for the state government to obtain instructions in the matter, which has been posted for further hearing on Tuesday, February 22, 2022. Earlier, Justice Pawar rejected the contention of the government advocate that the Lucknow Bench had no jurisdiction to hear the case since the original FIR was filed in Mathura.
Siddique Kappan has been in jail since October 5, 2020, when he was arrested while he was on his way to Hathras, Uttar Pradesh, to cover the gang-rape and killing of a Dalit woman. He and three other persons, including the driver of their vehicle, were picked up by the UP police and charged under Sections 124A, 153A, and 295A of the Indian Penal Code (IPC) i.e. sedition, promoting enmity on grounds of religion and deliberate acts to outrage religious feelings. Two days later, charges under various Sections of The Information Technology Act and The UAPA were added.
The 42-year old journalist was working for a news portal, “Azhimukham”. He is also the Secretary of the Delhi Chapter of the Kerala Union of Working Journalists (KUWJ) , an association of Journalists from Kerala based in in New Delhi. Kappan has also been a member of The Press Club of India since 2018.
In February 2021, the Supreme Court granted Kappan five days’ bail to enable him to visit his 90-year-old mother, Khadeeja Kutty, who was bedridden and ailing. She passed away in June 2021.
The application, filed under Section 482 of the Criminal Procedure Code (CrPC), states that the orders for sanction of prosecution dated 31.03.2021 and 06.04.2021 were patently illegal. Moreover, “it is evident on a bare perusal of the sanction order dated 31.03.2021 that the prosecution sanction has been granted without due application of mind and in a mechanical and mala fide manner,” the application said.
The Cognizance Order dated 03.04.2021 and subsequent proceedings arising out of the Cognizance Order dated 03.04.2021 “suffer from non-application of judicial mind,” the petition asserts.
The application states that the cases relating to the investigation of cases under UAPA/NIA were transferred to the Additional Sessions Judge-III at the Special NIA Court in the Lucknow Sessions Court after the bail application was rejected by the Mathura Sessions Court on 06.07.2021. The applicant has not yet been provided with a copy of the charge-sheet and other documents of investigation. This affected the right of the accused to prepare and pursue a defence before the Trial Court, the application states.
The application submits that “it is a settled position of law that prosecution sanction for offences under Unlawful Activities (Prevention) Act cannot be granted under Section 196 Cr.P.C. and prosecution sanction for offences under Unlawful Activities (Prevention) Act can only be granted by the competent authority under Section 45 of the Unlawful Activities (Prevention) Act. Therefore, the sanction order dated 31.03.2021 suffers from non-application of mind and deserves to be quashed.”
The application challenges the second prosecution sanction dated 06.04.2021 under Section 45 of UAPA on the grounds that there was no competent authority to grant the sanction as prescribed under Section 45 of UAPA read with Section 2 (b) of The Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 and the further ground that the second prosecution sanction was nothing but a review of the first prosecution sanction, which was impermissible in law.
The State Government was statutorily required to appoint a Competent Authority to independently grant sanction after consideration of the report/materials provided by the investigating agency. However, no such Competent Authority was appointed by the State Government at the time of granting prosecution sanction. Thus, Sanction Order dated 06.04.2021 was bad in law, the petition said.
Advocate Ishan Baghel Singh represented the applicant.