Why was Sharjeel Imam granted ‘default bail’ in a 2020 sedition case? | Explained

The Delhi High Court on May 20 granted statutory bail to JNU scholar and student activist Sharjeel Imam in connection with a 2020 communal riots case involving allegations of sedition. He was charged with the offence of sedition by the Delhi Police in 2020 for allegedly making inflammatory speeches at Aligarh Muslim University and Jamia Millia Islamia concerning the Citizenship Amendment Act, 2019 (CAA). Later, Section 13 (punishment for unlawful activities) of the Unlawful Activities (Prevention) Act, 1967, was invoked against him under which the maximum punishment prescribed is seven years.

Mr. Imam has been in judicial custody since January 28, 2020. However, this bail does not mean that he will be set free since he is also an accused in the larger conspiracy case in relation to the 2020 North-East Delhi riots.

In light of this development, The Hindu decodes how default bail under Section 436A of the Code of Criminal Procedure, 1973 (CrPC) varies from regular bail and the factors generally considered by courts while granting this “indefeasible right”.

Also Read: Freeing the undertrial

Section 434A CrPC

The provision of default bail under Section 436A of the CrPC was introduced through an amendment in 2005 to protect the rights of undertrials who often endure prolonged incarceration while awaiting trial or investigation. It imposes a statutory limit on detention in cases where trial has not yet commenced. 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.

However, if the Court denies this statutory relief, it must provide written reasons for the refusal. Additionally, in computing the detention period, any delay in proceedings caused by the undertrial himself is excluded from the total time period considered.

Notably, default bail is also granted to an accused under Section 167(2) of the CrPC if the investigating agency fails to file a final chargesheet within 60 days from the date of remand. For certain categories of offences, the stipulated period can be extended to 90 days.

Judicial precedents

In July 2022, the Supreme Court in Satender Kumar Antil v. Central Bureau Of Investigation underscored the mandatory compliance of this provision 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. It also asserted that the power to deny such a default relief must be exercised sparingly since the provision facilitates personal liberty under Article 21 of the Constitution. Notably, the Bench of Justices Sanjay Kishan Kaul and MM Sundresh clarified this 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.

Subsequently, in March 2023, the top Court expressed serious displeasure when it came to know that the district judiciary was not adhering to the guidelines laid down in Satender Kumar. Warning judicial officers that they would be taken off work and sent for training if such continued non-compliance is observed, the Court said, “If such orders are being passed by some Magistrates it may even require some judicial work to be withdrawn and the magistrate to be sent to judicial academies for upgradation of their skills.”

In Vijay Madanlal Choudhary and Ors v. Union of India and Ors (2022), the Supreme Court reiterated that default bail under Section 436A of the CrPC would also be applicable in PMLA cases where obtaining bail is nearly impossible due to stringent provisions.

Sharjeel Imam’s argument

Mr. Imam had moved the High Court after a Delhi Court on February 17 denied him bail. The trial Court was following a January 30 direction from the High Court asking it to decide the bail application expeditiously.

In 2022, the trial court had framed charges against the student leader under Sections 124A (sedition), 153A (promoting enmity), l53B (imputations prejudicial to national integration), 505 (statements conducing to public mischief) of IPC and Section 13 (Punishment for Unlawful Activities) of the UAPA. As per the prosecution, Mr. Imam had made inflammatory speeches at the Jamia Millia Islamia University and the Aligarh Muslim University during protests against the contentious CAA. He had allegedly asked those protesting at the time to cut off Assam and the rest of the North East from the country.

The activist contended before the High Court that he had already spent four years in jail out of the maximum sentence of seven years and is, therefore, eligible for statutory bail under Section 436A of the CrPC. He pointed out that the Supreme Court in May 2022 had stayed the operation of Section 124A of the IPC and thus the sedition charges against him did not stand. Further, the Court was apprised that the UAPA provisions invoked against him did not carry more than seven years of imprisonment.

Accordingly, a division Bench of Justices Suresh Kumar Kait and Manoj Jain granted him bail taking into consideration the period of incarceration also served.

Earlier, the trial Court had dismissed Mr. Imam’s bail plea ruling that even though his speeches and other activities did not contain any exhortation to people to pick up weapons or kill however they were instrumental in mobilising the public, which could have been “the main reason” behind the outbreak of the 2020 Delhi riots. The order went on to say that “the words as used by [Imam] in his different speeches were so powerful that they captured the mind of the people of a particular community and incited them to take part in the disruptive activities which finally resulted into the riots”. It concluded that his alleged acts and actions were seditious “in a normal dictionary meaning”.