Lucknow: Senior Samajwadi Party (SP) leader Azam Khan did not make any statement that could incite enmity between two communities on the basis of religion, origin, birthplace, language, etc, or have an adverse effect on communal harmony, noted the court of Rampur additional sessions judge earlier this week, acquitting the former MP in a 2019 hate speech case.
Additional sessions judge (MP/MLA court) Amit Veer Singh called the 2022 judgment of a lower court convicting Khan “illegal” and based on “non-admissible evidence”.
He said two government officials posted in Rampur at the time of the alleged incident, who testified as prosecution witnesses, admitted to a dispute between the then district magistrate (DM) Aunjaneya Kumar Singh and Azam Khan. He added that the DM had got the complaint lodged against Khan after pressuring one of the officials.
In its order issued Wednesday, the court said the lower court had not considered Section 65B of the Evidence Act (specifies the requirements for the admissibility of electronic records as evidence in legal proceedings). It cited two earlier cases in the Supreme Court where the latter held that any electronic evidence — stored in CDs, VCDs, chips — must have a certificate under Section 65B of the Evidence Act, 1872, for it to be admissible in court.
It further stated that the prosecution side did not try to establish important electronic evidence under the relevant Act.
“The FIR (First Information Report) was lodged by cutting and editing some portions of the speech and not the entire transcript of the speech. Due to this, there cannot be substance for a crime against the accused by joining some portions of a speech and merely due to this fact, the basis of the prosecution’s case fails to hold,” it said.
Azam was booked under IPC Sections 153 (provocation while knowing it may cause riots), 505 (1) (b) (causing alarm that may provoke someone to act against State) and Section 125 of the Representation of the People Act, 1951 (promoting enmity between classes in connection with election) in April 2019. The basis was a speech, where he had allegedly mentioned CM Yogi Adityanath, the then Rampur DM Aunjaneya Kumar Singh and PM Narendra Modi, that went viral in the run-up to the 2019 Lok Sabha elections.
In October last year, an MP/MLA court sentenced the SP veteran to three-year imprisonment after convicting him. A day after the conviction, the UP assembly secretariat disqualified Khan and declared the Rampur assembly seat vacant. A bypoll was held on the seat in 2022 and the BJP’s Akash Saxena won it.
Khan was disqualified on the basis of a 2013 Supreme Court judgment that a convicted legislator sentenced to at least two years of imprisonment will lose their House membership with immediate effect.
Following Khan’s acquittal, his legal team is exploring if there is a legal recourse available for the leader to reclaim his assembly membership.
Speaking to ThePrint, his advocate Vinod Sharma said that the role of the trial court was limited to conviction or acquittal, and that the disqualification was based on a Supreme Court judgment. “It is for the Election Commission to decide about the membership of the UP assembly,” he said.
On the question of whether Khan can reclaim his seat, legal experts answered in the negative. Supreme Court advocate Rakesh Dwivedi explained that since elections were held following Khan’s disqualification and a representative from that constituency is there in the assembly, the leader cannot reclaim his seat.
“The newly elected member’s election can be set aside only by means of an election petition. Hence, it is not legally possible for Khan to seek that seat back,” Dwivedi said.
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‘Faulty intention of accused not established’
The MP/MLA court noted Wednesday that a detailed investigation established that faulty intention of the accused could not be established in the case.
It said about the lower court verdict that “the decision that has been given, has been delivered without any conclusion being drawn about the mens rea (mental state and intention behind the act) even as the detailed investigation establishes that no faulty intention of the accused could be established by the prosecution”.
“The detailed investigation has also established that the accused did not make any statement that could incite enmity between two communities… neither does the speech entail something that has the potential to cause any fear among the public that could incite it towards a crime against the State or public order,” it noted.
The court added that the lower court drew its conclusion without investigating the facts before it, and without giving any reason, which was “absolutely illegal”.
On the testimonies of two government officials posted in Rampur at the time of the incident, the court said one of them had admitted to having prior information about a dispute between the then DM Kumar and Khan. The other official, said the court, had testified that the DM, who was also the district election officer, had pressured him to lodge a complaint against Khan.
In his testimony, Chandrapal (goes only by first name), the then assistant development officer (ADO), panchayat, Shahabad block, had told the court, “Azam Khan, his wife Tazeem Fatma and son Abdullah Azam and other Samajwadi Party representatives had given several complaints to the Election Commission, against the then DM Rampur Aunjaneya Kumar. It is correct that there was a dispute between Kumar and Azam Khan due to these complaints.”
The other official who testified was Anil Kumar Chauhan, ADO (agriculture protection), Shahabad.
The court said the then DM could have “taken civil or criminal action but rather than doing that, an FIR was lodged… even as there is no substance of the crime under IPC Sections 153 a, 505 (1) (b) and Section 125 of the Public Representative Act (sic)”.
The court concluded that none of the admissible evidence presented by the prosecution side can establish the facts mentioned in the FIR. “The evidence is based on non-admissible evidence,” it said.
Way forward?
Zubair Ahmad, a senior advocate who has represented Khan in some cases, told ThePrint over the phone that his client is reviewing the legal remedies available to him.
However, other legal experts say there is little that can be done as far as restoring Khan’s assembly membership is concerned.
Kumar Mihir, a senior advocate practising in the Supreme Court, said, “Another election (bypoll) has happened and his vested right has been taken away despite the pendency of the appeal but there are little chances that a court will now interfere with that election.”
He added, “He (Khan) can file a writ petition seeking that the EC declares the subsequent election invalid and the speaker recognises him as the rightful MLA but courts are normally reluctant to interfere with the speaker. Further, the new MLA will also have to be heard. It is doubtful that the same will be overturned.”
A.P. Singh, a senior advocate in the Supreme Court, said that he couldn’t recall any reportable judgment or precedent where membership was restored in such a case.
S.N. Shukla, general secretary of Lok Prahari — a lucknow-based society working in the area of public governance and administration — said since Khan is still a convict in another case, he continues to remain disqualified. Lok Prahari has filed many PILs in the top court that have led to electoral reforms in the country.
“If he was not facing any other conviction, his acquittal in this case would still not have resulted in him getting any right to reclaim the lost seat. This is because an elected representative from that constituency is already there in the House,” Shukla said. The only benefit that accrues for Khan, in the absence of any other conviction, is that he would be able to fight elections, he added.
“Conviction results in immediate disqualification. Further, it also bars a convicted leader to contest in elections for six years, from the date of the conviction. With an acquittal, the leader would now be eligible to fight elections. But this can only happen if he is acquitted in the other case — in which he is convicted — as well,” Shukla clarified.
(Edited by Smriti Sinha)
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