New Delhi: It was over the first two days of January that stand-up comedian Munawar Faruqui and four others accused of cracking hurtful jokes at an Indore cafe were arrested from the Madhya Pradesh city. A sixth accused — a minor — was apprehended as well but got bail soon afterwards from a juvenile court.
In the month and a half following their arrest, the five filed 15 bail petitions, of which 12 have been rejected so far. As things stand, three of the men — including Faruqui — are out on bail, even as two others remain in prison.
This begs the question — why the different treatment for accused facing the same charges? At the heart of the issue are different interpretations of the legal principle of parity — citing similar circumstances in expectation of a similar outcome — employed by two courts.
The five men who were arrested were Faruqui, Prakhar Vyas, Edwin Anthony, Nalin Yadav, and Sadaqat Khan. They have been booked under Sections 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 298 (uttering words etc with deliberate intent to wound the religious feelings of any person), 269 (negligent act likely to spread infection of disease dangerous to life), 188 (disobedience to order duly promulgated by public servant) and 34 (common intention) of the Indian Penal Code.
The FIR, filed on a complaint lodged by Eklavya Singh Gaur, son of BJP MLA Malini Laxman Singh Gaur, alleged that Faruqui made indecent remarks against Home Minister Amit Shah and some Hindu deities.
Faruqui, Vyas and Anthony are currently out on bail.
Principle of parity
Faruqui was granted interim bail after three failed attempts, with the Supreme Court last week taking note of allegations that the guidelines laid down by it for arrest were not followed in this case.
Armed with the Supreme Court order, Faruqui’s co-accused tried to get bail on parity. However, not all of them were successful in their attempt.
While Khan’s second bail application — where he cited grounds of parity — was rejected by the trial court, Vyas and Anthony were granted interim bail, on the same grounds, on their third attempt by the Madhya Pradesh High Court. Yadav has also had three failed bail attempts and is in the process of challenging the rejection of his bail application before the Supreme Court.
Vyas and Anthony were granted bail on 12 February, after the high court took note of the order passed in Faruqui’s case by the Supreme Court.
“Applicant is held entitled for temporary bail maintaining parity in the light of the order dated February 5, 2021, passed by the Supreme Court,” the high court said.
The principle of parity usually helps co-accused get bail, as it says that if bail is granted to one accused, then it can also be granted to another accused whose case stands on an identical footing.
However, Khan’s second bail application was rejected on 9 February by the Indore district and sessions court.
According to the court’s order, police have claimed that Khan, who is a Mumbai-based civil engineer, was one of the organisers of the event, along with the others arrested. Police also told the court that Khan has been organising such events with Faruqui through social media for quite some time, and that they’ve had cases registered against them in Mumbai, as well as at George Town Police Station in Uttar Pradesh in similar matters.
The court rejected the bail application, noting that Faruqui has only been granted interim bail by the Supreme Court and, therefore, the benefit of parity cannot be given to Khan in his regular bail plea. An interim bail is temporary bail that is granted while a person’s regular bail petition is pending before a court.
The sessions court also opined that the circumstances had not changed after Khan’s first bail plea was rejected on 11 January. Just because Faruqui had got interim bail, it cannot be said that there was a change in circumstance warranting grant of bail to Khan, it said.
Also read: Munawar Faruqui no hardened criminal. Denying him bail is to keep Muslims in line
Same judge had denied bail to Faruqui
Justice Rohit Arya, who granted bail to Vyas and Anthony on 12 February, is the same judge who had denied bail to Faruqui and Yadav on 28 January.
During the hearing of Faruqui and Yadav’s bail application on 25 January, Justice Arya had asked their lawyers, “But why do you take undue advantage of others’ religious sentiments and emotions? What is wrong with your mindset? How can you do this for the purpose of your business?”
The judge had also expressed disinclination towards granting bail, asking Faruqui’s lawyer — senior advocate Vivek Tankha — if he wanted to withdraw the bail application. However, Tankha asserted that Faruqui “has committed no offence” and that bail should be granted to him.
While reserving the order, the judge had remarked, “Such people must not be spared.”
While rejecting Faruqui and Yadav’s bail application, the high court had then asserted that the prosecution evidence collected so far prima facie suggests the two had made “scurrilous, disparaging utterances” with a “deliberate intendment” to “outrage religious feelings of a class of citizens”.
“It is not a case of no evidence,” the judge held. This was the third time Faruqui’s and Yadav’s bail was rejected.
Arnesh Kumar judgment
However, a week later, the Supreme Court granted interim bail to Faruqui — on 5 February. It was the Supreme Court’s Arnesh Kumar judgment that came to Faruqui’s rescue.
In the 2014 verdict, the Supreme Court had laid down a procedure to be followed to arrest persons in matters where an offence is punishable with a jail term of up to seven years. It reiterated the provisions under Section 41A of the Criminal Procedure Code (CrPc), which lists the conditions that need to be satisfied for police officer to arrest a person without a warrant in such cases.
Sub-clause (1)(b)(ii) of Section 41 lists 5 such conditions, like the police officer should be satisfied that it is necessary to arrest the person to prevent him from committing another crime, or if he is likely to tamper with evidence or threaten witnesses, etc.
In the Arnesh Kumar verdict, the Supreme Court had said that police need to forward a check list of the arrest duly filled, and furnish the reasons that necessitated the arrest, while producing the accused before the magistrate.
Taking note of the allegation that the procedure laid down by the Arnesh Kumar verdict was not followed in this case, the Supreme Court granted interim bail to Faruqui. It also stayed the production warrant issued in connection with a case registered by the Uttar Pradesh Police against him last year.
Faruqui has also filed a petition in the Supreme Court seeking quashing of the FIRs against him.
As for Yadav, his lawyer Anshuman Srivastava told ThePrint that they are in the process of filing an application for his bail in the Supreme Court in the next few days.
Also read: From Dongri to MP jail — comic Munawar Faruqui’s life is rife with humour, hustle & tragedy
It’s clear if you pray continually multiple times a day than you are radicalized into believing that IDOL WORSHIPPERS are against your religious beliefs and you need to deal with them in a way your religious beliefs require you too.
Ofcourse you can’t deal with them in INDIA under BJP rule like they are dealt with in pakistan or earlier in Kashmir. So you indulge in insulting their GODS and religious practises.
Knowing fully well you have the support of ultra left wing radicals and journalists who believe that the only way they can be secular is by abusing HINDUS and not taking a stand on proselytizers and RIOTERS.
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