In Granting Bail to Kashmiri Photojournalist, Court Picks Holes in NIA's Claims

The bail order states that there was no evidence to show Yusuf was involved in stone-pelting or any terror activities in the past.

New Delhi: A real journalist is someone who reports on the “developmental activity” of the government, the National Investigation Agency had told a court here last month in opposing the bail plea of a photojournalist arraigned for pelting stones on the security forces in Jammu and Kashmir.

It said the journalist, Kamran Yousuf, had not bothered to cover blood donation camps or skill development programmes and road inaugurations and instead covered “antinational activities.”

On Monday, the special NIA court rejected these and other arguments and granted bail to Yusuf, six months after he was arrested.

Judge Tarun Sehrawat’s order is considered significant because bail is rarely granted by lower courts in ‘terror’ cases where the accused is charged with offences under the draconian Unlawful Activities (Prevention) Act.

Kamran’s case was seen in Jammu and Kashmir as emblematic of the manner in which young men in the Valley are picked up on flimsy charges even when there is no concrete “evidence” against them.

The fact that bail has now been granted  is likely to raise questions about the premier investigation agency’s decision to file a serious charge against a journalist without any corroborating material in hand to sustain its case.

Twenty-year-old Yusuf was first arrested by the Jammu and Kashmir police from Pulwama on September 4, 2017, and the transfer of custody was made to the NIA on September 6 with the accusation of stone pelting levelled against him.

Yusuf, who is a freelance photographer, denied the charge of stone pelting and insisted he was present at the site of a violent protest because he was “carrying out his duties as a photojournalist by covering each and every incident in and around Pulwama, worthy of being reported” in the media.

‘Nothing on record to show indulging in stone pelting’

In his order, the judge debunked the NIA charge against Yusuf and said that in his ‘considered view’ his “presence on the sites of stone pelting incident etc is intrinsic notwithstanding the fact/contention that he was not a permanent employee of any media organisation”.

The judge further said that the “NIA has not placed on record any single photo/video showing that the applicant/accused was indulging in stone pelting activities at any site”.

In the case of Yusuf, the judge also held that “he had come just after the incident” and had kept shouting at the assailants “not to hit and molest the girls and he was also telling the police persons to take action against the assailants”.

The judge also noted that the prosecution could not provide evidence to back its claim that Yusuf had been in touch with any of the other accused persons in the case. He said that its charge that the journalist had been in touch with an unnamed “Party B” was irrelevant since the NIA had not charged “Party B” in the case.

The NIA’s claim of Yusuf exchanging messages with terrorist organisations fell apart after his lawyer, Warisha Farasat showed in court that those numbers belonged, inter alia, to other journalists and even a senior police officer.

Thus, keeping in view the facts of the situation, the court held that Yusuf was entitled to be released on bail. “It is apparent that mere presence of the accused at the site of the incident is not sufficient to implicate such accused, who is a journalist, for the offences [that] allegedly occurred during that period at that site.”

Mere membership of banned organisation does not make one criminally liable’

Judge Sehrawat also noted that “the prosecution has not levelled any specific allegations against the present accused/applicant that he has been a member of any particular banned organisation as per the first schedule annexed to the Unlawful Activities (Prevention) Act.”

“Even otherwise,” he said, “membership of a banned organisation will not make a person criminally liable unless he resorts to violence or incites people to violence.”

The NIA had also accused Yusuf of being a conduit for those involved in terror funding. However, the special judge has not found merit in any of its arguments.

The judge also held that the “prosecution has not till date shown any direct/indirect linkage of the present accused/applicant with the other accused persons of this case”. He also held that Yusuf had “not been found involved in any such offences/terrorist activities in the past”.

The judge also took cognisance of the fact that “no such material, explosive or otherwise, has been recovered from or at the instance of the applicant/accused” that that there was “no allegation that the applicant/accused was arrested soon after the occurrence, on the basis of the information or clues available with the investigating agency”. The fact that the witnesses – all of whom are security forces personnel – were asked to identify Yusuf on the basis of photographs rather than a ‘test identification parade’ also went against the NIA.

‘Bona-fide journalist in a disturbed area’

On the other hand, Sehrawat said, Yusuf had “shown himself as a bonafide journalist of the disturbed areas of J&K”.

The court also observed that the NIA’s witnesses, in this case, were all security personnel deployed in the operations and as such “there are no chances of influencing/threatening the witnesses or tampering with the evidence” should Yusuf be released on bail.

Therefore, “considering the totality” of the “facts and circumstances”, the court granted bail to Yusuf.