# Sidhique Kappan v. State of U.P. Opp. Party

- **Citation:** (2022) 8 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-02
- **Case number:** Crl. Misc. Bail Appl. No. 1612 of 2022
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sidhique-kappan-v-state-of-u-p-opp-party-48789
- **Pages:** 6

## Headnote

Amendment Act, 2019 - Section 43(D)(5) -
438 INDIAN LAW REPORTS ALLAHABAD SERIES
The section prohibits a Court from granting bail
to accused if on a perusal of a final report filed
under Section 173 Cr.P.C., the Court is of the
opinion that there are reasonable grounds to
believe that the accusations against such person
are prima-facie true. The Court is not supposed
to delve into the admissibility and inadmissibility
of documentary and oral evidence at the stage
of bail.

Bail Application dismissed. (E-12)

List of Cases relied upon:-

## Text

8 All. Sidhique Kappan Vs. State of U.P.
437
making any inducement, threat or promise
to a witness so as to dissuade him from
disclosing such facts to the court or the
police officer; or unless such accused
person is arrested, his presence in the court
whenever required cannot be ensured.
These are the conclusions, which one may
reach based on facts. The law mandates the
police officer to state the facts and record
the reasons in writing which led him to
come to a conclusion covered by any of the
provisions aforesaid, while making such
arrest. The law further requires the police
officers to record the reasons in writing for
not making the arrest. In pith and core, the
police officer before arrest must put a
question to himself, why arrest? Is it really
required? What purpose it will serve? What
object it will achieve? It is only after these
questions are addressed and one or the
other conditions as enumerated above is
satisfied, the power of arrest needs to be
exercised. In fine, before arrest first the
police officers should have reason to
believe on the basis of information and
material that the accused has committed the
offence. Apart from this, the police officer
has to be satisfied further that the arrest is
necessary for one or the more purposes
envisaged by sub-clauses (a) to (e) of
clause (1) of Section 41 Cr.P.C."

9. Thus, it is mandatory on the part of
the investigating officer to record reasons
for making arrest as well as for not making
arrest in respect of a cognizable offence for
which the maximum sentence is up to
seven years.

10. However, arrest is not required to
be made under Sub-Clause (1) of the
amended Section 41 of the Code, the police
is bound to issue a notice of appearance to
the accused person. Even in such a case,
failure to comply with the notice of
appearance or unwillingness to identify
himself may be grounds for the police to
arrest a person to whom a notice under
Section 41-A of the Code has been issued.

11. The statutory protection under
Section 41 and 41-A of the Code is already
available, which the police authorities are
bound to comply in this case also.

12. Considering the facts and
circumstances of the case, the present
anticipatory bail application is disposed of
directing the Investigating Officer to
strictly comply with the provisions of
Section 41 and Section 41-A of the Code of
Criminal Procedure as provided by Hon'ble
Supreme Court of India in Arnesh Kumar
(supra).

13. The anticipatory bail application
is finally disposed of with the above noted
directions.
----------
(2022) 8 ILRA 437
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.08.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Appl. No. 1612 of 2022

Sidhique Kappan ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Ishan Baghel

Counsel for the Opp. Parties:
G.A.

Unlawful
Activities
(Prevention)
Amendment Act, 2019 - Section 43(D)(5) -
438 INDIAN LAW REPORTS ALLAHABAD SERIES
The section prohibits a Court from granting bail
to accused if on a perusal of a final report filed
under Section 173 Cr.P.C., the Court is of the
opinion that there are reasonable grounds to
believe that the accusations against such person
are prima-facie true. The Court is not supposed
to delve into the admissibility and inadmissibility
of documentary and oral evidence at the stage
of bail.

Bail Application dismissed. (E-12)

List of Cases relied upon:-

1. National Investigation Agency Vs Zahoor
Ahmad Shah Watali
(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri I.B. Singh, learned
Senior Counsel assisted by Sri Ishan
Baghel and Avinash Singh Vishen, learned
counsel for the applicant, Sri Vinod Kumar
Shahi,
learned
Additional
Advocate
General assisted by Sri Shivnath Tilahari,
learned A.G.A. and perused the material
available on record.

2. Applicant seeks bail in Crime
No.199 of 2020, under Sections 153-A,
295-A, 120B I.P.C., Sections 17, 18 of
U.A.P. Act and Sections 65 and 72 of I.T.
Act, Police Station Mant, District Mathura,
during the pendency of trial.

PROSECUTION STORY:

3. As per prosecution story, the
applicant
alongwith
three
co-accused
persons, namely, Athikurrehman, Alam and
Masood, were lodged at the Police Station
Mant vide G.D. No.41/20:52 hours on
05.10.2020 and six smart phones, one
laptop and pamphlets were recovered from
them. After an inquiry, it came out that the
applicant and other co-accused persons
were travelling to disturb the harmony of
the area. It is alleged in the F.I.R. that the
applicant and other co-accused persons
were heading to Hathras where the ill-fated
incident of rape and murder had been
committed with an intention to create caste
struggle and to incite riots. The said
persons are said to have been collecting
funds and running a website 'Carrd.com'. It
was also revealed that the said collected
funds were used to break the social
harmony
and
incite
violence.
The
pamphlets read as 'AM I NOT INDIAS
DAUGHTER MADE WITH Carrd' etc. It
was also found that the incident of mob
lynching, exodus of labourers and the
Kashmir issues were also highlighted
through the same website. The website also
imparts training pertaining to concealing
one's identity during demonstrations and to
ways to incite violence. The website was
found to be full of misinformation thereby
distorting true facts. There was another
website operated by the laptop which had
the heading 'Justice For Hathras'. The
matter
was
registered
under
various
sections of I.P.C., U.A.P. Act and I.T. Act.

RIVAL CONTENTIONS:

4. Learned Senior Counsel for the
applicant has stated that the applicant is
innocent and has been falsely implicated in
the case. No pamphlets or printing papers
were being carried out by the applicant or
other co-accused persons in the car. The
applicant is unaware of any website with
the name of 'Carrd.com' and 'Justice For
Hathras'. The applicant was going to
Hathras to discharge his duty as a
professional journalist and was illegally
detained by Mant Police, District Mathura
in violation of his fundamental rights. The
applicant is not a member of P.F.I. and was
not acting at the behest any of their office
bearers. Learned Senior Counsel has
further stated that the applicant was not
8 All. Sidhique Kappan Vs. State of U.P.
439
going to Hathras on the directions of P.F.I.
and furthermore that P.F.I. is not banned
organization altogether. The applicant has
never used any platforms to spread
disharmony or further class/communal
conflict. The applicant only used to post his
journalistic writings and links pertaining to
his job of mass communication.

5. Learned Senior Counsel has further
stated that the applicant has never ever
participated in any secret workshop with an
aim of furthering caste conflict in India. So,
no question arises of applicant being
involved with any other persons to commit
violence under the guise of class/communal
conflict across the State. The applicant had
himself
conducted
a
workshop
on
wikipedia editing which were open to all
and related to journalistic and non-political
activities. The applicant is an honest and
law abiding journalist and has not received
any funds from abroad. The applicant had
himself
interviewed
including
Ansad
Badruddin, the State President of B.J.P.
Kerala, Central Minister from Kerala and
the Members of Muslim League and B.J.P.
etc. Learned Senior Counsel has further
stated that the acquaintance of the applicant
with Ansad Badruddin does not make him a
criminal. There is no iota of evidence
available on record to suggest that he was
involved in illegal activities taken up by
Ansad Badruddin or any other person.
There is nothing on record to suggest that
the applicant had ever written an article on
social media promoting terrorist Gulzar
Ahmed Wani. He had not made any video
whatsoever of Hathras incident.

6. Learned Senior Counsel has also
stated that a friend of the applicant was
writing a book on Ex-SIMI leaders and sent
a draft of his book to the applicant. The
said friend had also requested the applicant
to conduct interviews of Ex-SIMI leaders
who were now MP's from Trinamool
Congress. This is an open secret. The
applicant is an honest journalist and does
not post any biased reports on the basis of
his political leanings. He has never been
directed by any P.F.I. leader to report in a
biased manner. The applicant has no
acquaintance with any terrorist named
Professor Jilani. Learned Senior Counsel
has further stated that the applicant was a
former
employee
of
Tejas
Weekly
Newspaper which is associated with P.F.I.,
as such, he was in touch with many P.F.I.
activists, but has nothing to do with the
organization. The money transferred to his
account is his hard earned money and has
nothing to do with any offence whatsoever.
Some allegations were levelled against the
applicant by one website 'Indus Scroll'
whereby the applicant had sent a legal
notice to the website for their defamatory
and false averments. The applicant has
written several journalistic reports on the
plights of dalits and minorities, but none of
them promotes any sort of rivalry between
the communities. The applicant had no
prior association with co-accused Alam,
who happens to be the driver of the car.

7. Learned Senior Counsel for the
applicant has also stated that the provisions
of U.A.P.A. Act are not applicable to the
applicant as the amended sanction under
the Act has been taken by the Department
on 08.06.2021. The said sanction is ipso
facto illegal at the outset and has been
challenged by the applicant by filing a
petition under Section 482 Cr.P.C. in the
High Court which is still sub-judice. The
applicant was first of all produced before
the S.D.M. Mant, Mathura and was sent for
judicial custody till 19.10.2020. Learned
Senior Counsel has vehemently argued that
the Kerala Union of Working Journalist
440 INDIAN LAW REPORTS ALLAHABAD SERIES
filed
a
Habeas
Corpus
Petition
on
05.10.2020 in the Supreme Court, which
was to be taken up on 07.10.2020 and the
same day, F.I.R. No.199 of 2020 was
registered against the applicant and other
co-accused persons under Sections 153-A,
295-A, 124A, 120B I.P.C., Sections 17, 18
of U.A.P. Act and Sections 65 and 72 of I.T.
Act. Learned Senior Counsel has stated that
at the time of filing of charge-sheet,
sanction was not produced alongwith it
rather it was produced later on. The
sanction for prosecution was taken by the
A.T.S. on 31.03.2021 and was filed on
09.04.2021, which had come on record on
12.04.2021 after an application moved by
the prosecution. Learned Senior Counsel
has further stated that later, on 24.08.2021,
the State notified for creation of a
Competent Authority to grant sanction
under U.A.P. Act, thus sanction granted
earlier to that is illegal. The case was
transferred to the Special Court Lucknow
in
December,
2021.
Learned
Senior
Counsel has further stated that there is no
criminal history of the applicant.

8. Per contra, Sri Vinod Kumar Shahi,
learned
Additional
Advocate
General
assisted by Sri Shivnath Tilhari, learned
A.G.A. for the State has vehemently
opposed the bail application on the ground
that the applicant is a resident of Kerala
and has nothing to do with the incident of
Hathras and had deliberately with malafide
intent come with the co-accused persons
and was arrested at Mathura.

9. Sri Shivnath Tilhari, learned A.G.A.
for the State has categorically stated that the
applicant was found carrying pamphlets 'How
To Escape' while inciting riots and he and
other co-accused persons were received
financial assistance through illegal means to
go to Hathras alongwith other terrorist
persons with a plan to spread social
disharmony and incite class war. The
applicant had conducted a secret workshop
with other persons with an aim to furthering
the caste conflict across the country.

10. Learned A.G.A. has further stated
that the co-accused persons had collected
funds from foreign national mediums
which was utilized by co-accused persons
for illegal activities. The applicant was in
regular touch with co-accused persons,
namely, Rauf Sharif and Athikurrehman,
and there are call detail records (CDRs) to
corroborate the same, which has been filed
in the counter affidavit as annexure SCA-3.
Learned A.G.A. has further stated that on
the analysis of the mobile recovered from
the applicant, there is an F.S.L. report
which suggests that there are WhatsApp
chats wherein the applicant was a member
of hit squad of Ansad Badruddin, which
have also been filed by the State. It is also
pertinent to note that the co-accused
persons, namely, Ansad Badruddin and
Firoz, were arrested by the police in F.I.R.
No.4 of 2021, under Sections 121A, 120B
I.P.C., 13, 16, 18 and 20 of U.A.P. Act,
Sections 3, 4 and 5 of Explosive
Substances Act and 3/5 Arms Act by the
A.T.S. Lucknow and a heavy amount of
explosives were recovered from them.
There are number of WhatsApp chats of the
applicant with the General Secretary of
P.F.I. Kamal K.P., which also revealed
about the alleged workshop having been
conducted by the applicant and other coaccused persons. The said workshop is
stated to have been conducted to incite riots
across the country, by raking up issues of
C.A.A. and Babri Masjid demolition. In all,
45 papers pertaining to banned organization
'SIMI' have been recovered from the laptop
of the applicant. He has also received
tainted money which is on record.
8 All. Sidhique Kappan Vs. State of U.P.
441

11. Learned A.G.A. has further stated
that during the search of the house of the
applicant at New Delhi on 11.11.2020, 47
papers
in
Malyalam
language
were
recovered pertaining to SIMI. Two AK-47
guns were also shown in the said
documents, which also contains the popular
slogan of SIMI 'Welcome Mohammad
Gajni'. Learned A.G.A. has further stated
that the present offence is covered by
Section 43(D)(5) of U.A.P. Act. Learned
A.G.A. has fairly conceded the fact that he
does not press the arguments pertaining to
Section 124A owing to the latest judgment
of the Apex Court. Learned A.G.A. has
further stated that no proper cause has been
shown by the applicant pertaining to his
presence near Hathras at such crucial time
when State was going social unrest, rather
he has used journalism as a cover to fulfill
his ulterior motives.

CONCLUSION:

12. It has come up in the investigation
that the applicant had no work at Hathras.
The State machinery was at tenterhooks
owing to the tension prevailing due to
various types of information being viral
across all forums of media including the
internet. The said sojourn of the applicant
with co-accused persons who do not belong
to media fraternity is a crucial circumstance
going against him.

13. The defence taken by the
applicant that he is a journalist and only
owing to his professional duty, he wanted
to visit the place of Hathras incident stands
nullified by the averments in the chargesheet and the persons, he was arrested with,
while travelling in a car. The tainted money
being used by the applicant and his
colleagues cannot be ruled out.

14. The legislature has framed the
U.A.P. Act to control such instances. The
Courts interpret the laws enacted by the
legislature which becomes functus officio
after the framing of the statute.

15. In the matter of National
Investigation Agency vs. Zahoor Ahmad
Shah Watali1, the Apex Court, while
overturning the High Courts order of
granting bail to the accused, has stated that
Section 43(D)(5) prohibits a Court from
granting bail to accused if on a perusal of a
final report filed under Section 173 Cr.P.C.,
the Court is of the opinion that there are
reasonable grounds to believe that the
accusations against such person are prima
facie true. The Apex Court has also
observed that the High Court had applied
an
altogether
wrong
approach
by
examining and evaluating the evidence in
detail. The Court is not supposed to delve
into the admissibility and inadmissibility of
documentary and oral evidence at the stage
of bail.

16. A perusal of the charge-sheet and
documents adduced, prima facie reveal that
the applicant has committed the offence.

17. Considering the facts and
circumstances of the case, submissions
advanced by learned counsel for the parties,
nature of offence, evidence on record,
considering the complicity of accused,
severity of punishment and the settled law
propounded by the Apex Court in the case
of Zahoor Ahmad Shah Watali (supra), at
this stage, without expressing any opinion
on the merits of the case, this Court is not
inclined to release the applicant on bail.

18. The bail application is found devoid
of merits and is, accordingly, dismissed.
442 INDIAN LAW REPORTS ALLAHABAD SERIES

19. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of
bail
application
and
the
said
observations shall have no bearing on the
merits of the case during trial.
----------
(2022) 8 ILRA 442
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Crl. Misc. Anticipatory Bail Appl. U/S 438 Cr.P.C.
No. 3532 of 2022

Suresh Babu ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Akhilesh Srivastava, Sri Saksham Srivastava,
Sri V.P. Srivastava (Sr. Adv.)

Counsel for the Opp. Party:
G.A., Sri Anuj Srivastava, Sri Ravendra Singh, Sri
Siddharth Saran, Sri Akhilesh Kumar Mishra

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 438 (1) - As
per section 438 Cr.P.C. the Anticipatory
Bail Application may be filed either before
Sessions Court or before High Court in as
much as both the aforesaid courts are
having the concurrent jurisdiction. Section
438 (1) Cr.P.C. clearly mandates that if
any anticipatory bail application is filed,
either it may be rejected forthwith or any
interim order may be passed. In other
words if the court wants to know some
information from the other side, the case
may be posted for another date and if the
applicant has got prima facie case and his
apprehension of arrest appears to be
bonafide in a case where the allegations
prima
facie
do
not
corroborate
with
material available on record may grant
interim anticipatory bail.
B. Code of Criminal Procedure, 1973 -
Section 82 -Sneither creates any rider nor
imposes any restrictions in filing anticipatory bail
application by the proclaimed offender inasmuch
as the Hon'ble Apex Court has used the word
'Normally' in re: Lavesh (supra), meaning
thereby
normally
the
anticipatory
bail
application of the proclaimed offender should
not be entertained. It has nowhere been
indicated u/s 438 Cr.P.C. that the proclaimed
offender
would
be
barred
to
file
such
application. As to whether such proclaimed
offender would be granted anticipatory bail or
not
would
depend
upon
the
facts
and
circumstances of the particular issue.

C. If the physical relation has been established
on the false promise of marriage and the
physical relation was consensual in nature and it
lasted for long time, prima facie it may not be
treated as rape but it may be considered as
breach of promise.

Application allowed. (E-12)

List of Cases cited:-

1. Lavesh Vs State (NCT of Delhi) (2012)8 SCC
730

2. St. of M.P. Vs Pradeep Sharma (2014)2 SCC
171

3. Prem Shankar Prasad Vs St.of Bihar (Criminal
Appeal No. 1209 of 2021(SC))

4. Sonu@Subhash Kumar Vs St. of U.P. & anr.
(Criminal Appeal No. 233 of 2021(SC)) arising
out of SLP (Criminal) No. 11218 of 2019

5. Sushila Agarwal Vs St. (NCT of Delhi) 2020
SCC Online SC 98
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri V.P. Srivastava, learned
Senior Advocate assisted by Sri Akhilesh
Srivastava and Sri Saksham Srivastava,
learned counsel for the applicant, learned
AGA and Sri Siddharth Saran and Sri