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Allahabad HC Quashes Criminal Proceedings Against Kafeel Khan in 2019 Anti-CAA Speech

The court set aside the charge sheet and cognisance order passed against Khan, noting that the requisite sanction was not taken by district magistrate from Union and state governments.

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Lucknow: In a major setback for the Yogi Adityanath government, the Allahabad high court quashed criminal proceedings against Dr Kafeel Khan, which resulted from an FIR (first information report) over his speech at Aligarh Muslim University (AMU) during protests against Citizenship Amendment Act (CAA) on December 12, 2019.

A single-judge bench of Justice Gautam Chaudhary set aside a charge sheet and cognisance order passed against Khan, noting that the requisite sanction was not taken by district magistrate from Union and state governments under Section 196(A) of the Criminal Procedure Code (CrPC).

The FIR was registered against Dr. Khan at the Civil Lines police station in Aligarh on December 13, 2019. It charged him under Section 153A (promoting enmity between different groups on grounds of religion) of the Indian Penal Code (IPC), stating that his speech had “disrupted the harmony between the communities” and was “likely to create a law and order situation”.

Subsequently, Dr. Khan was arrested from Mumbai Airport on January 29, 2020 by the Uttar Pradesh Special Task Force (UP-STF), when he was in Mumbai to participate in an anti-CAA protest at Mumbai Bagh on December 30, 2020.

Later, Sections 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements, creating or promoting enmity, hatred or ill will between classes) were also added to the FIR. Thereafter, a charge sheet was filed against him in the court of chief judicial magistrate, Aligarh, in March 2020.

The court took cognisance of the charge sheet filed by the police and had summoned him to face trial in the case. Later Dr. Khan moved the high court under Section 482 CrPC and sought quashing of the criminal proceedings and the cognisance order.

The Uttar Pradesh government had also invoked the National Security Act (NSA) against Dr. Khan and was suspended from BRD Hospital, Gorakhpur. However, in September 2020, the Allahabad high court quashed the detention of Dr. Khan under NSA. The high court had called Dr. Khan’s prolonged incarceration illegal and ordered his immediate release on bail, but criminal proceedings under IPC were sustained.

Speaking to The Wire after Allahabad high court quashed charges against Khan, his counsel Manish Singh said, “Criminal proceedings quashed was made the basis for initiating proceedings under NSA against Khan by the state, which was later quashed by the high court on September 1, 2020. A special leave petition filed by the state against the said order was also dismissed by the Supreme Court on December 17, 2020. The court observed that his speech was actually a call for national integration.”

Continuing further, he said, “The high court allowed our application filed under Section 482 CrPC.  Entire proceedings in the case against Dr. Khan were under Section 153-A, 153-B, 505(2), 109 IPC, which were pending in the court of chief judicial magistrate, Aligarh, and the cognisance order was set aside or quashed.”

Singh also mentioned that the Allahabad high court had also remanded the matter back to the court of chief judicial magistrate, Aligarh, with the direction that as per the provisions of Section 196 Crpc, cognisance against Dr. Khan under the said sections is taken only after obtaining prior sanction of prosecution by the Central government or the state government or the district magistrate.

Speaking to The Wire after the pronouncement of the verdict, Khan termed it a “landmark judgment” for those who have faith in the Indian judiciary and democracy. “Those who want to enforce the divisive agenda in the country and deliver bizarre speeches – like Ali-Bajrang Bali Shamshaan-Qabristan –  to polarise the voters in the name of religion painted my speech for national unity and integrity into inflammatory speech.”

“I have full faith in the judiciary of my country and hope that I would get justice in other frivolous cases too, which are pending against me filed by the Uttar Pradesh government,” he added.

It is to be mentioned here that after his incarceration of nearly seven months, Dr. Khan moved out of Mathura Jail at midnight of September 2-3, 2020. But instead of going to his hometown Gorakhpur, he went out of Uttar Pradesh. Dr. Khan’s family expressed apprehensions that if he were to return home, the state police might slap new charges against him and send him back to prison.

Dr. Khan said that one of the prime reasons as to why the state government implicated him in cases is because all the charges levelled against him in the matter of the infant deaths at the BRD Medical College, Gorakhpur, due to oxygen shortage, in August 2017 were proven wrong. Although successive investigations cleared his name, the state government denied it, he added.

A paediatrician at BRD Medical College, Gorakhpur, Khan was suspended from service on August 22, 2017, following the death of about 60 infants in the medical college due to the shortage of oxygen. He has also challenged his suspension before the high court, which is hearing the case.