The Delhi High Court has granted bail to JNU scholar and student activist Sharjeel Imam in connection with the 2020 communal riots in Delhi involving allegations of sedition. He was charged under the Unlawful Activities Prevention Act (UAPA) by the Delhi Police in 2020 for allegedly making incendiary speeches at Jamia Millia University and Aligarh Muslim University over Citizenship Amendment Act (CAA).
But Iman will not be released from jail since he is in custody for another case involving the 2020 North-East Delhi riot. Imam has been in the jail as an undertrial since January 28, 2020.
What are the Provisions of Bail Granted to Imam?
In 2022, the trial court in Delhi had framed charges against Imam under Section 124A (sedition), 153A (promoting enmity), 153B (imputations prejudicial to national integration), 505 (statements conducing to public mischief) of IPC and Section 13 (punishment for UAPA).
The prosecution said Imam made inflammatory speeches at Jamia Millia University on December 13, 2019, and at Aligarh Muslim University on December 16, 2020. He had allegedly asked the protesters to sever ties with Assam and northeast.
The trial court dismissed his plea on February 17 saying though Imam’s speeches did not exhort protesters to pick up weapons or kill, but they were key in mobilizing the masses, which could have been a reason for the outbreak of the 2020 riots in the national capital.
He was granted statutory bail under Section 436A of the CrPC as he had already spent four years in jail of the maximum sentence of seven years. Since the Supreme Court had suspended the use of Section 124A of IPC in May 2022, the sedition charges against him did not stand.
Also, the Section 13 of UAPA invoked against him did not carry a sentence of more than seven years.
A division Bench of Justices Suresh Kumar Kait and Manoj Jain granted Imam statutory bail on technical grounds on May 29 taking into consideration the period of incarceration already served.
There are other cases pending against Imam in at least four states — Assam, Manipur, Arunachal Pradesh and Uttar Pradesh — other than Delhi. He is not in custody in these cases, thus does not need to apply for bail.
What is a Statutory Bail?
Section 436A of the CrPC was introduced through an amendment in 2005 to tackle the issue of the rising number of undertrials in prisons.
According to the National Crime Records Bureau data for 2022, there were 63,502 undertrials across the country who were charged for offences that carry a sentence of less than two years.
The Code imposes a statutory period for which an undertrial prisoner is in detention. As per the provision, if an undertrial has been in custody for more than half of the maximum period of imprisonment prescribed for the offence (excluding cases where the death penalty is a possible punishment), they are entitled to be released on bail on their personal bond, with or without sureties.
436-A of the CrPC reads: “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.”
If a court refuses statutory bail to an undertrial, it must provide in writing the reasons for refusal.
What are Other Provisions for Undertrial’s Protection?
It is mandatory for courts to grant bail under Section 436 CrPC in all bailable offences. An accused willing to furnish a bail bond has to be granted bail. In case of non-bailable offences, it is up to the court to decide whether it will grant the bail.
A default bail is granted to an accused under Section 167(2) of the CrPC if the investigating agency fails to complete the investigation and file a final report before the court within 60 days. For more serious offences that prescribe death or life imprisonment, the period for investigation is 90 days. Default bail is only for IPC crimes.
How Supreme Court Set Precedents
The Supreme Court in 2022 in Satender Kumar Antil vs Central Bureau of Investigation stress the mandatory compliance of Section 167(2) by pointing out that “such cases would not even require a bail application to be moved especially when the reasons for the delay are not attributable to the accused”, as mentioned in a report by The Hindu. It also cautioned that the default bail should be provided “sparingly” since the provision facilitates personal liberty under Article 21 of the Constitution.
The Bench of Justices Sanjay Kishan Kaul and MM Sundresh clarified the default relief would also apply to special laws such as the UAPA, the Prevention of Money Laundering Act, 2002 (PMLA) and the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) in the absence of any specific provisions to the contrary.
In March 2023, the Supreme Court reprimanded district courts for not adhering to the guidelines laid down in the Satender Kumar case. It said if non-compliance on the part of the district courts continue then magistrates would be required to be “sent to judicial academies for upgradation of their skills”.