IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI State vs. 1) Anirban Bhattacharya (Bail Application No. 1153/16) 2) Umar Khalid (Bail Application No. 1154/16) FIR No. 110 of 2016 PS : Vasant Kunj (North) [Investigated by Special Cell, Lodhi Road] uls : 1248/147/149/120B/34 IPC 18.03.2016 Present: Sh. Irfan Ahmad, Ld. Addl, PP for the State, [OJ Insp. Umesh Barthwal in person, Sh. Trideep Pais, Ld. Counsel for the applicant / accused Anirban Bhattacharya. Sh. Jawahar Raja, Ld. counsel for the applicant / accused Umar Khalid, si By this common order, | shall decide the bail applications under Section 439 of the Code of Criminal Procedure (Cr.P.C,) of the applicants / accused Anirban Bhattacharya and Umar Khalid, 2 The case set up against the accused persons as per the contents of the FIR and replies filed to the bail applications is that on 08.02.2026 Anirban Bhattacharya and Umar Khalid had applied with the authorities at Jawaharlal Nehru University (JNU) seeking permission to hold a cultural event at Sabarmati Dhaba in JNU Campus on 09.02.2016 between 5-7pm. Anifban Bhattacharya and Umar Khalid had designed and composed posters forthe said event and in the morning of 09.02.2026 the same were distributed and also pasted in the campus of JNU. The sald posters had the following text- ‘Against the Brahmanical ‘collective conscience: against the jucicial killing of Afzal Guru & Maqboo! Bhatt in solidarity with the struggle of the Kashmiri people for their democratic right to self ©”. determination. We invite you for a ‘Cultural Evening’ of protest + >. with poets, anists, singers, writers, students, intellectual, cultural activists 9% February, Tuesday, Spm, Sabarmati Dhaba. There will “algo be atyart exhibition & a photo exhibition portraying the history erg no! RO ao18 Y m2of the occupation of Kashinir & the people's struggle against it. We invite everyone to join us in protest, in rage against the ‘occupation and in solidarity with the valiant people of Kashmir, 3 Saurabh Kumar Sharma, the Joint Secretary of JNU Students Union (JNUSU) addressed a complaint on 09.02.2016 with a Copy of the said poster to the Dean of JNU claiming apprehension that in \ Pursuance of the sald proposed event, anti-national activities and anti- Constitutional slogans would be raised at Sabarmati Dhaba in JNU which would disturb peace and harmony of the campus. In pursuance of the said information, the authorities at JNU canceled / revoked the permission granted for the cultural event which was communicated to the accused persons. 4 On the same day ie, on 08.02.2016 at about 4:30pm, Naveen Yadav, the Chief Security Officer (CSO) of JNU handed over a written complaint to Police Station Vasant Kunj (North) along with a copy of the complaint of Saurabh Kumar Sharma, Joint Secretary JNUSU and Copy of the poster. On the said information of the CSO of JNU, Insp. Virender Singh deployed police staff at the north gate of the campus, He bd met the CSO Naveen Yadav and asked him to call the police inside the Campus if the need arose, HC Rambir was deputed at Sabarmati Dhaba in civil dress. 5 Even though the permission was cancelled, the accused Persons went ahead with their proposed event. Since the security staff of the JNU did not permit them to proceed, the accused and their supporters started raising slogans (which have been described in replies to the bail applications), Another group of students also assembled and started to raise counter slogans. At about 7:25pm in the evening of 09.02.2016, “y Information was received by Insp. Virender Singh through the PCR about 1] two groups of sludents being present at Sabarmati Dhaba of JNU and that PIR No.0 of 2016 Nee masince the situation had gone out of control, police presence was required The police staff proceeded towards Sabarmati Dhaba and found 80-90 students under the leadership of the President of JNUSU and accused Umar Khalid shouting slogans and proceeding towards Ganga Dhaba. At the same time, 40-0 students under the leadership of Saurabh Kumar ‘Sharma, Joint Secretary of JNUSU were also seen shouting slogans and proceeding towards Ganga Dhaba. The local police and JNU security were Present and both groups were observed to be shouting slogans against each other, Media persons were present and at about 8:30pm both the ‘groups dispersed, shouting slogans. 6. On 10.02.2036, Mis Zee News broadcast a programme regarding the incident which took place at JNU on 09.02.2026 in which students of JNU were seen to be raising ant national slogans. Video footage of the event was obtained from the Editor of M/s Zee News at Noida and after viewing the same, it came: to light that people were walking in a procession under the leadership of Umar Khalid at Sabarmati Dhaba in JNU campus and raising anti-national slogans. The FIR records ‘that from the contents of the letter of CSO of JNU, complaint of Saurabh Kumar Sharma and footage of M/s Zee News and also the fact that several students and JNU staff were disturbed by these slogans, offence under Section 124A / 34 of the IPC was made out and the present FIR came to be registered. 7. Kanhaiya Kumar, President of the JNUSU was arrested on 12.02.2016. The present accused, Anirban Bhattacharya and Umar Khalid were arrested on 24.02.2016. Investigation of this case was lwansferred to the Special Cell of Delhi Police. investigation revealed that . Umar Khalid and Anirban Bhattacharya had applied for permission to hold the’ event and were the main organisers of the event which ended in 4 raising of artinational and ant-constitutional slogans. The posters in NEE ee : Ss tplena, 120 ozo, Ye azQuestion had been designed by Anirban Bhattacharya and approved by Umar Khalid. Umar Khalid had booked a public announcement (PA) system for the programme scheduled for 09.02.2016. Posters with photographs of Afzal Gury, Maqbool and other persons seen in the hands of the protesters had been retrieved from the e-mail ID of both the accused Persons. Independent witnesses had given statements regarding the Presence of Anirban Bhattacharya and Umar Khalid in the procession and slogans being raised, During the course of the investigation, footage of the incident was taken from one Jaspreet Singh who had recorded the same on his mobile handset which reflected the presence of both the accused persons. The mobile handset was seized and sent for examination to the FSL whose results were awaited. 8 On behalf of the accused Anirban Bhattacharya, Ld, Counsel Sh. Trideep Pais had referred to the provisions of Section 124A of the IPC and had submitted that even if all the acts attributed against the accused were taken to be true, no offence was made out under Section 124A of the IPC. He relied upon the following case law:- (Kedar Nath Singh vs. State of Bihar, AIR 1962 SC 955; (i) S. Rangarajan etc. vs. P. Jagjivan Ram & Ors, (1989) 2 SCR (ii) Shreya Singhal vs. Union of india, (2015) 5 SCC 1; (iv) _ Bilal Anmed Kaloo vs. State of A.P., (1997) 7 SCC 431; (v) Javed Habib vs, The State (NCT of Delhi), 2007 (96) DRI 693; (vi) Sanskar Marathe vs. Sate of Maharashtra, 2015 Cri. LJ (3561; (vii) Oma @ Omprakash & Anr. vs, State of Tamil Nadu, (2013) 3 SCC 440; and (vill) Bijoe Emmanuel & Ors. vs. State of Kerala & Ors., AIR 1987 SC 748. 9... Sh. Trideep Pais submitted that the following principles could * e‘eulled gu; from the above mentioned pronouncemants:- @) &, that making a strong speech or using vigorous words * lig a Writing directed to a very strong criticism of measures of » the Government or acts of public officials would not attract ive Snooty ve wa po20. offence under Section 124A of the IPC; only words which have tendency or intention to create public disorder or disturbance of law and order would fall within the ambit of Section 124A of the IPC; (b) _ that freedom of expression could not be suppressed Unless the situations created by allowing the freedom are Pressing and the community interest is endangered; the anticipated danger should not be remote conjectural or far fetched: it should have proximate and direct nexus with the expression; the expression of thought should be intrinsically dangerous to the public interest; the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg"; (¢)__ that the court is to keep in mind distinction between criticism of the government and the criticism by a leader of a political party; the Court has to consider the real intention ‘and spirit of words used and to ascertain whether there was any general tendency of the words to be intended to excite the feelings of a section of the society or the words used Were severe criticism of the acts of the government; (2) that the ingredients for the offence under Section 1248 of the IPC was doing of certain acts which wouid bring government established by law into hatred or contempt and that comments expressing disapproval or criticism of the government by lawful means were not seditious; (e)__ that the freedom of speech and expression involved three concepts, first of which was discussion, second was advocacy and third was incitement; mere discussion or even advocacy of a particular cause howsoever unpopular was at the heart of Article 19(1) (a); it was only when such discussion or advocacy reached the level of incitement that Article 19(2) of the Constitution would come into play; it was at that stage the law may be made to curtail the speech or expression that leads to disorder or tends to cause public disorder or tends to affect the sovereignty and integrity of Incia, etc. ‘ Sh. Trideep Pais further submitted that facts of the present case as recorded in the FIR itself revealed that after the sloganeering had taken place, both the groups dispersed and no further incident took place in pursuance of the sloganeering. He submitted that as the sloganeering FIR No-t4got 2018 Ww sizdid not lead to any further incident, the: allegations against the accused Persons fell short of the ingredients of Section 124 A of the IPC. He submitted that the present FIR is an outcome of student rivalry in JNUSU and pointed out that admittedly another group of students had gathered to Confront the organizers of the said event, nu. Sh. Trideep Pais submitted that video footage ‘of the events provided by M/s Zee News was the basis of registration of the FIR. He submitted that there was a lot of controversy surrounding the authenticity of the same which have also been the subject matter of an enquiry by the Delhi Government which has found the same to be manipulated. He further submitted that on same set of allegations, co-accused Kanhalya Kumar, President of the JNUSU had been granted bail by the Hon'ble High Court, In this regard he placed on record a copy of the status report filed by the State while opposing the bail application of co-accused Kanhaiya Kumar and referred to the contents of para 37 of the same, 12. Sh. Trideep Pais lastly submitted that the applicant / accused Anirban Bhattacharya was not absconding but had hid himself to save his life due to the pubic disorder / hysteria which had arisen upon the apprehension of co-accused Kanhalya Kumar, especially while he was being produced at Patiala House Cours. He submitted that Anirban Bhattacharya had filed @ Writ Petition before the Hon'ble High Court and had surrendered himself before the police voluntarily. He submitted that Anirban Bhattacharya was arrested on 23.02.2006 and is in custody since then. Police custody was also granted in the intervening period for a total Period of seven days that is between 23.02.2006 to 01.03.2016. He submitted that Anirban Bhattacharya is a Ph.D student at the Centre for Historical Studies (CHS) at JNU and was pursuing his final semester and Is due to submit his PhD thesis within four months, He submitted that the acoused.was a bright and meritorious student having graduated in History erie ons \ a(Hons.) from St. Stephens College in the year 2007 and thereafter pursued M.A. from CHS at JNU between 2007-09, completed M.Phil in 2011. and was awarded an ‘A-' which was the third highest grade in JNU. He had been awarded the Indian Council for Historical Research Scholarship in 2015 and had topped all india examination for the same, 13, ‘On behalf of Umar Khaled, Sh. Jawahar Raja, Counsel made similar submissions. It was further submitted that Umar Khaled had not absconded but had gone into hiding because of the incidents which took place with co-accused Kanhiya Kumar. He also had filed a Writ Petition before the Hon'ble High Count and surrendered himself to the police on 23.02.2016. He was remanded to police custody for three days wer, 24.02.2016, two days on 27.02.2026 and for one day on 29.02.2016. He is in judicial custody since 01.03.2036. 14 It was further submitted that Umar Khaled had completed his graduation from Kirorimal College, Delhi University in 2009, enrolled at CHS in JNU and completed M.A in 2021, joined M, Phil in 2021 and completed the same in 2033 with grade ‘A’ which was'the second highest ‘grade in the assessment scale’ of JNU. tis stated that accused Umar Khalid is currently pursuing Ph.D from JNU and also that one of his papers were selected for an international conference- ‘Young Scholars’ Conference, 2016, Constructing the Past: Disciplines, Sources, Methods’ itis further stated that Umar Khaled is an ordinary resident of hostel in JNU and his family has been living in Delhi for the past 20 years. Father of this accused is the editor of an Urdu Journal and. President of Welfare Party of India, a poltical pany. The sisters of the accused are also pursuing their education at reputed universities like University of Massachusetts, Ambedkar University Delhi and Jamia Mila Islamia, 38. ‘Opposing the bail applications of both the accused persons, ee oSh. Irfan Ahmed, Ld. Addl. PP for the State referred to the provisions of section 124A of the IPC and has argued that the said provision not only brings into its fold any actual incident of hatred, contempt, or disaffection, but also any ‘attempt’ to do so, He submitted that it was not necessary that the sloganeering and distribution of pamphlets actually resulted or led to any further incident and that an attempt in this regard was sufficient to attract the provisions of section 124A of the IPC. He submitted that the nature of the slogans raised in the incident and the contents of the posters were clearly seditious in nature, He submitted that the case law relied upon by the accused persons would be to no avail when the plain and grammatical meaning of the provisions of section 124A of the IPC are applied to the facts of the present case. 16. AAs regards the submission for grant of bail on the ground of parity qua co-accused Kanhaiya Kumar, Sh. Irfan Ahmed submitted that the allegations against Kanhaiya Kumar and that against the present accused persons are not the ‘same, He submitted as far as Kanhalya Kumar was concemed, there was no allegation that he had organized the event while the present accused were those who had conceived the event, sought and were granted permission for it, made the posters, went ahead Gespite the cancellation of the permission, led and were part of a crowd which raised seditious slogans, He submitted that the investigation of the case was at a delicate stage and some of the co-accused who were absconding were yet to be apprehended and the larger conspiracy Surrounding the incident was to be unearthed, As far as the video footage was concerned, he submitted that the case qua the present accused was based not only on the video footage but also on the basis of eye-witness accounts of independent witnesses. He drew the attention of the Court to ~ the statements of some of the witnesses recorded by the police during the course of the investigation, namely Sourabh Kumar Sharma, Sandeep Kumar and Akhilesh Pathak. SE, Finnataro ot 206 \V ana. | have heard the Ld. Counsel for the parties and have Perused the record before me. At the outset, itis to be kept in mind that co-accused Kanhaiya Kumar has been granted bail by the Hon'ble High Court. The allegations against the present accused have been referred to above. Question arises as to whether the present accused can claim any arity with co-accused Kanhaiya Kumar who has been granted bail? Counsel for the accused had placed on record a copy of the Status Report filed by the State before the Hon'ble High Court while opposing the bail plea of co-accused Kanhaiya Kumar. in the same, in para no.37 itis stated as under:~ "37. Further investigation of the case is in progress and efforts are being made to apprehend the remaining accused who had absconded after registration of this case. That during the course of investigation statements of various eye- witnesses who were found present on the spot, were recorded, It ring the course of ini ‘hat accused Kanthalya. the petitioner herein not only in i it actual the C ns. During the course of investigation it has been revealed that the Accused persons were holding Posters and pamphlets which were not only distributed by them throughout the Campus on 08.02.2016 but also distributed the same on 09.02.2016 when the aforesaid incident occurred. A copy of the said posters and pamphlets is produced with the present Status Report. The language of the said posters itself falls within the mischief of substantive offence punishable under Section 124-A Indian Penal Code." (emphasis supplied) 18 Even though it was submitted by the Ld. Addl, PP for the State that Kanhaiya Kumar was not involved in organizing the event, from the contents of para 37 of the Status Report filed before the Hon’ble High Cour, it is apparent that the case set up by the police qua co-accused ‘kanhaiya Kumar was also of organising as well as participating in the said event. The allegations qua the present accused are similar to theallegations made with respect to Kanhaiya Kumar in the Status Report submitted before the Hon'ble High Court during the consideration of his bail application, 19. ‘Submission had been made by the Ld, Addl. PP for the State that there were statements of witnesses to the incident. Having gone through the statements of Sourabh Kumar Sharma, Sandeep Kumar and Akhilesh Pathak, it does not appear that the role attributed to Kanhaiya Kumar in the statements of these witnesses is any different to the allegations made against the present accused / applicants, 20. ‘Apart from the ground of parity, this Court has also to keep in mind the well settled principles governing the consideration of a bail ap- plication. In the case of Prasanta Kumar Sarkar v, Ashis Chatterjee eported in (2010) 14 SCC 486 the Hon'ble Supreme Court reiterated that among other circumstances, the factors to be borne in mind while considering an application for bail ae: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (i nature and gravity of the accusation; (ii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail (¥) character, behaviour, means, position and standing of the accused; (i) likelihood of the offence being repeated; (vil) reasonable apprehension of the witnesses being influenced; and (vill) danger, of course, of justice being thwarted by grant of bail at It is in the light of the aforesaid principles that the facts and circumstances of this case have to be considered, 22, Both the present accused are highly educated persons. ae a FIR No,They have graduated from premier colleges of Delhi University, completed their M.A and M.Phil from JNU arid are currently pursuing Ph.O programme from JNU. They have been residing in JNU for the past 5-6 years. Their credentials and family backgrounds as stated in their bail applications have not been contested by the State. No submission has been made to the effect that both the applicants Umar Khalid and Anirban Bhattacharya have been involved previously in any criminal case. No record has been placed by the State regarding any such past conduct of both these persons. 23. Although the allegations leveled against Umar Khalid and Anirban Bhattacharya are per- se serious in nature, but as claimed by the police themselves, the video footage of the incident has been sent to the forensic sciences laboratory. Its analysis and final report will certainly take some time. 24, In so far as the issue of severity of the punishment in the ‘event of conviction is concerned, it will be also pertinent to mention that section 124A IPC prescribes three Kinds of punishment i.e. ‘imprisonment for life to which fine may be added or with imprisonment which may extend to three years to which fine may be added or with fine ‘simplicitor. It is clear that the law itself provides for a wide spectrum of nature and quantum of Punishment which can be imposed upon an accused in case of conviction for the said offence. However, | do not wish to delve further in this regard at this stage of the matter. 25. When all the aforesaid circumstances are weighed together, ‘and keeping in view that no previous criminal record of any nature _Whatsoever has been alleged and the fact that nothing has been brought on record which could indicate that they are likely to abscond from the jurisdiction of the Cour, then besides tie ground of parity vis-&-vis release FIR No,t0 of 2016 Vy weof Kanhalya Kumar on bail, | deem it appropriate to release both the ‘accused on interim bail for a period of six months subject to them furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount. Its further directed that the accused shall not leave Delhi without the permission of this Court during the period of interim bail and shall make themselves available before the investigating officer as and when required for the purposes of investigation, 26. Bail applications stand disposed off accordingly. Copy of the order be given dasti Announced in the open Court \ on48" Maréh, 2016 [70 (tee Pee, ad FIR No, 110 of 2016 utes az (REETESH SINGH) ASJ-02/FTC, PHC(NDD. Pdi, BesORs few Dott Oistlet I. m2