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What Delhi High Court says on JNU Student Kanhaiya Kumar’s Bail?

Kanhaiya Kumar Bail

कन्हैया कुमार को ज़मानत देते हुए कोर्ट की कड़ी व् शर्मिंदा करने वाली टिपण्णी :

1. कन्हैया कुमार के अपराध को अदालत एक संक्रामक रोग या व्याधि मानती है, जो आजकल यूनिवर्सिटीज में कई लोगों को गिरफ्त में ले रहा है

2. ये बीमारी महामारी बनकर फैले उससे पहले इसपर रोक लगाना ज़रूरी है

3. कन्हैया को को इस शर्त पर ज़मानत दी जा रही है कि वो अंडरटेकिंग दें कि वो किसी भारत विरोधी गतिविधि में सक्रिय या अक्रिय रूप से शामिल नहीं होंगे

4. ज़मानत केवल इसलिए दी जा रही है ताकि वो अपने साथियों व् समाज से घुल-मिलकर सामान्य हो सके .

5. कोई उनका प्रोफेसर टीचर ये विश्वास दें कि वो देश छोड़ कर नहीं जायेंगे

अदालत ने यह भी कहा कि वह सुधार के प्राथमिक उपायों को काम में लाते हुए छात्र समझते हुए सुधरने का मौका दे रही है ….


W.P.(Crl.) No.558/2016
Page
1
of
23
$~
47
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Date of Decision :
2
nd
March
,
2016
+
W.P.(CRL) 558/2016
& Crl.M.A. Nos.
3237/2016 & 3262/2016
KANHAIYA KUMAR
…..
Petitioner
Through :
Mr.Kapil Sibal, Senior Advocate,
Ms.Rebecca M.John, Senior Advocate
with Mr.Sushil Bajaj, Mr.Bankim
Kulshreshtha, Ms.Vrinda Grover,
Mr.Vishal Gosain, Mr.Victor Dhissa,
Mr.Bajinder, Ms.Tarannum Cheema
and Mr.Harsh Bora, Advocates.
V
ers
us
STATE OF NCT OF DELHI
….. Respondent
Through :
Mr.Tushar Mehta, ASG, Mr.Sanjay
Jain, ASG, Mr.Chetan Sharma, Senior
Advocate with Mr.Anil Soni, Special
PP, Mr.Shailendra Babbar, Special
PP, Mr.Mukesh Gupta, Mr.Amit
Gupta, Mr.Rishabh Juneja, Mr.Raj
at
Nair, Mr.Manan Popli, Mr.Aadit
Khorana, Ms.Ruchi Jain, Mr.Sarfraz
Ahmed, Advocate for
the State
.
Mr.Rahul Mehra, Standing Counsel
(Criminal) for
Govt. of NCT of Delhi
with Ms.Richa Kapoor, ASC,
Mr.Sanjay Lao, ASC, Mr.Rajesh
Mahajan, ASC and Mr.Aditya
Swarup
Aggarwal, Advocate.
W.P.(Crl.) No.558/2016
Page
2
of
23
PRATIBHA RANI,
J. (Oral
)
1.
‘Rang hara Hari Singh Nalve se,
Rang laal hai Lal Bahadur se,
Ran
g
bana basanti Bhagat Singh,
Rang aman ka veer Jawahar se.
Mere Desh ki Dharti sona ugle
Ugle here moti mere desh ki dharti’
2.
This patriotic song from ‘Upkaar’
by L
yricist Indeevar
symbolizes
individual
characteristics
representing by different colours and love for
motherland
.
3.
Spring season is a time when nature becomes green and flower blooms
in all colours.
This spring w
hy the colour of peace is
eluding the prestigious
Jawaharlal Nehru University
(JNU)
situated in the heart of Delhi needs to be
answered by
its
students, faculty
members and those
managing the affairs of
this national
u
niversity
.
4.
On 9
th
February, 2016 a
programme was proposed
to be organised
under the title ‘
Poetry Reading

The Country Without A Post Office’ at
Sabarmati Dhaba
,
Jawaharlal Nehru University. Since the title of the
programme did not suggest anything objectionable, permission was granted.
When the posters of the said programme revealed the
topic
of the
programme to be organized that evening, the authorities at JNU acted swiftly
by cancelling the permission and communicating the same to the organizers
as well the security staff. What follow
ed thereafter
has been recorded in
FIR
No.110/2016 under Section 124

A/34 IPC at PS Vasant Kunj North. The
status report shows that now the case is under investigation for the offence
punishable under Sections 124

A/120

B/34/147/149 IPC.
W.P.(Crl.) No.558/2016
Page
3
of
23
5.
In the writ petit
ion bearing W.P.(Crl.) No.29/2016
the Supreme Court
on 19.02.2016 ordered for transmitting the record of bail petition of
petitioner Kanhaiya Kumar to
High Court of Delhi
for hearing by passing
the following order:

‘After hearing learned counsel for the
petitioner, learned
Solicitor General and the submissions of other members of the
Bar (who volunteered to make submissions in this matter), we
are of the opinion that the present petition be transmitted to the
Delhi High Court for consideration of the pra
yer for bail of
accused Kanhaiya Kumar in FIR No.110/2016 filed at PS
Vasant Kunj, New Delhi. We also grant liberty to the petitioner
to file such further petitions or other material which he deems
appropriate to bring the application in tune with the
req
uirement of law. We permit the petitioner to move the Delhi
High Court today. We request the Delhi High Court to consider
the application expeditiously and pass appropriate orders in
accordance with law.
Having regard to the background in which the
instant
application came to be filed, certain apprehensions were
expressed at the Bar on behalf of the petitioner and other
learned members of the Bar that some special precautions are
required to be taken which the proceedings are taken by the
Delhi High
Court to ensure the safety of the learned counsel
appearing for the petitioner and also the journalists.
Having regard to the history of the case, we deem it
appropriate to request the High Court to take such appropriate
steps at it deems fit and proper t
o ensure the peaceful conduct
of the proceedings. We also place on record that the learned
Solicitor General appearing for the Union of India as well as
the Commissioner of Police, Delhi assure that all necessary
precautions will be taken in consultation
with the Registrar
W.P.(Crl.) No.558/2016
Page
4
of
23
General of the Delhi High Court for the peaceful conduct of the
case.
The writ petition is disposed of and transmitted to the
Delhi High Court. The Registry is directed is transmit the
papers to the Delhi High Court forthwith along wi
th the order.’
6.
This is how the bail application of the petitioner made in W.P.(Crl.)
No.558/2016 is being heard by this Court.
7.
The writ petitioner before this Court seeks his release on bail in case
FIR No.110/2016 under Sections 124

A/120

B/34/147/149 IPC registered at
PS Vasant Kunj North asserting that the charge of sedition levelled against
him is false as he has never made an
y seditious utterances or raised any
anti

national
slogans on 9
th
February, 2016.
8.
Referring to the contents of FIR, the petitioner has claimed that there
was no incident of violence after the alleged incident of raising
alleged
anti

national
slogans. Ra
ther the JNU Campus remained peaceful and no
disturbance was reported from within the campus. The so called video
recording of the incident by some channels has been reported to be doctored
by the Press. The petitioner has been remanded to police custody
thrice and
has also joined the investigation.
He is no more required for investigation of
this case.
9.
In his speech delivered on 11
th
February, 2016
t
he petitioner has
projected himself to be a law abiding citizen having full faith in the
Constitution. Th
e petitioner has claimed himself to be a public figure and
member of AISF Students Political Party affiliated to Communist Party of
India. He is also President of Jawaharlal Nehru University Students Union.
W.P.(Crl.) No.558/2016
Page
5
of
23
He is pursuing Ph.d. at School of International
Studies, Jawaharlal Nehru
University. He has deep roots in the society. He is the victim of conspiracy
by
certain vested elements
who
are fabricating evidence against him. There
is no possibility of his being capable of tampering with the evidence.
10.
The
petitioner assert
s
his fundamental rights guarantee
d
under
Article
19(1)(a) of
the Constitution of India on the ground that the utterances
(speech or slogans) attributable to him cannot be termed to be in violation of
any law and as such he has not
committed any offence. The petitioner has
agreed to abide by the terms and conditions that may be imposed in case he
is ordered to be released on bail.
11.
Detailed s
tatus report has been filed by the State
which also includes
slogans raised and some of photo
graphs of the event
.
12.
I have heard Mr.Kapil Sibal, learned Senior Advocate for the
petitioner as well as Mr.Tushar Mehta, learned ASG for the State and
Mr.Rahul Mehra, learned Standing Counsel (Criminal) for Govt. of NCT of
Delhi.
13.
Mr.Kapil Sibal, learned Se
nior Advocate representing the petitioner
Kanhaiya Kumar has submitted that the incident dated 9
th
February, 2016 has
to be divided in three parts :

(i)
from 4.30 pm to 7.25 pm
(ii)
from 7.25 pm to 8.30 pm
(iii)
After 8.30 pm
14.
Mr.Kapil Sibal, l
earned Senio
r Advocate
for the petitioner has placed
on record the photocopy of the proforma for booking venue
for the event and
the undertaking annexed therewith which is not signed by the petitioner.
W.P.(Crl.) No.558/2016
Page
6
of
23
15.
Mr.Kapil Sibal, learned Senior Advocate for the petitioner has
s
ubmitted that
the petitioner has no role in that event.
His name also does
not appear on the poster
about the topic of that event
, contents of which were
considered
anti

national
by JNU authorities.
The petitioner has not been
seen raising
anti

national
slogans in any of the video footage. Rather on 11
th
February, 2016 the petitioner had given a speech, full text of which is
annexed with the petition as Annexure

G
(
as
reported by India
n
Express
)
. In
the said speech, the petitioner had raised his voice
against those who were
trying to break the country and break JNU. He has asserted that JNU will
strengthen the voice of democracy, voice of independence, freedom of
expression and
he
has expressed full faith in the Constitution
of India
.
16.
Mr.Kapil Sibal
, learned Senior Advocate for the petitioner has drawn
the attention of this Court to the contents of FIR wherein referring to the Zee
News Programme telecasted on 10
th
February, 2016 in the evening, it has
been recorded that in the clipping, JNU students
were seen raising
anti

national
slogans (
Pakistan Jindabad)
. However, this slogan does not find
mention in the thirty slogans quoted from pages 3 to 5 of the status report
filed by the State.
17.
Mr.Kapil Sibal, learned Senior Advocate for the petitioner ha
s
submitted that role
of the petitioner Kanhaiya Kumar is limited to the extent
that he reached the spot in his capacity as President of JNU Students Union
,
on coming to know about the tension between the two groups. After the
situation came under control
, he left the spot
.
T
here
was no untoward
incident leading to violence in the campus on that day.
T
he petitioner is
stated to have reached the spot at about 7.30 pm and it is
mentioned in the
status report
(para 32)
that after the situation was brought under control by
W.P.(Crl.) No.558/2016
Page
7
of
23
8.30

9.00 pm, all the students
reached Ganga Dhaba, some of the leaders
including petitioner addressed them and thereafter they
dispersed. The
speech made by the petitioner Kanhaiya Kumar on 11
th
Feb
ruary, 2016
cannot be termed as
anti

national
and whatever he has stated in that speech is
within his right to freedom of speech guaranteed under the Constitution of
India. Mr.Kapil Sibal, learned Senior Advocate for the petitioner has
submitted that the
petitioner had been remanded to police custody
thrice
and
he is no more required for investigation. In the circumstances, he may be
ordered to be released on bail.
18.
Mr.Tushar Mehta, learned ASG for the State has submitted that on 8
th
February, 2016 permiss
ion was initially sought by a group of students for
organising a cultural evening at Sabarmati Dhaba at JNU Campus which was
granted. The subject matter of the programme was referred to as ‘Poetry
Reading

The Country Without A Post Office’. The permissi
on was granted
to them to conduct the programme from 5.00 pm to 7.30 pm on 9
th
February,
2016.
19.
Mr.Tushar Mehta, learned ASG for the State has
referred to further
developments. The JNU authorit
ies
on getting the information
that
in the
guise of cultural fu
nction, some
anti

national
activities were to take place,
cancelled the
permission and the organising group was duly informed.
The
reason being that the
posters about the proposed programme were against the
judicial killing of Afzal Guru and Maqbool
Bhatt and have been put up at all
the hostels and these activities
were likely to
disrupt the peace and harmony
of the campus
. Ap
prehending breach of peace at the campus, the Chief
Security Officer, JNU as well local police was informed. There were
arg
uments between the students on one side and security staff on other side
W.P.(Crl.) No.558/2016
Page
8
of
23
on fixing the mike and other equipments.
The local police assisted by
security staff and positioned themselves between the two groups to maintain
distance between them.
The shouting
of
anti

national
slogans continued
unabated which were opposed/countered by the other group of students by
shouting slogans in support of the nation. In this process, the students from
both the groups had at many times engaged in verbal as well as physic
al
jostling and heckling. This situation led to law and order problem which
disturbed the public order in JNU campus. The situation was brought under
control
by
8.30 to 9.00 pm. B
oth the groups reached Ganga Dhaba where
some of the students leaders addres
sed the assembly before dispersing.
20.
Mr.Tushar Mehta, learned ASG
for the State has further stated that on
the basis of telecast by Zee News on 10
th
February, 2016 about the incident
at JNU on 9
th
February, 2016,
raw
video footage was obtained from that
cha
nnel and thereafter FIR No.110/2016 under Sections 124

A/120

B/34/147/149 IPC was registered at PS Vasant Kunj North.
21.
Alongwith the status report, the State has placed on record certain
photographs
to point out
that some of the persons in the photographs
are
covering their faces. Their identity and links
are
not known to the
investigating agency. Posters having photographs of Afzal Guru
have been
held by the students. The posters for the programme to be organised on 9
th
February, 2016 is with the heading ‘Against the judicial killing of Afzal
Gur
u
& Maqbool Bhatt’. The permission was applied by co

accused Umar
Khalid on the prescribed proforma for ‘Poetry Reading

The Country
Without A Post Office’ and it was only from
the posters circulated on 9
th
February, 2016 that the authorities at JNU came to know about the nature of
the programme being
anti

national
result
antly
permission was withdrawn.


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