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A Tale Of Two Standards Of Justice: Kapil Gujjar Gets Bail, Shahrukh Rots In Jail

Abdul Bari Masoud | India Tomorrow

NEW DELHI—Shahrukh Pathan and Kapil Gujjar are two sides of the judicial system. Gujjar got bail within days of opening fire at Shaheen Bagh, Shahrukh accused of firing in self-defence during the February 2020 violence in northeast Delhi, is still languishing in jail since March 2020.

Shahrukh has been denied bail by the sessions court, stating that he is ‘at flight risk’ which has been challenged in the Delhi high court and the latter has fixed the hearing in the case on March 18, 2021.

People would not have forgotten the face of gun-toting Kapil Gujjar who had opened fire at Shaheen Bagh protests site in the presence of heavy police force. He was granted bail by the court within days for his open and unprovoked aggression in peaceful time while the police personnel deployed there were seen smiling instead of catching him.

Whereas, Shahrukh Pathan, a similarly placed person like Kapil Gujjar with almost the same facts and charges has been incarcerated for the alleged offence for the past one year. If we compare Sharukh’s ‘crime’ with that of Gujjar, it was of lesser degree as he opened fire in self-defence during the violence.

“The pertinent question that haunts our mind is “Is Shahrukh being scapegoated merely because of his religious identity”? If not so, then why Kapil Gujjar is out and Shahrukh still facing the music of pre-trial detention”? Akhlad Khan poses this question who is Shahrukh’s attendant.

While denying bail to Shahrukh, the Additional Sessions Judge, Amitabh Rawat observed, “What is material is the gravity of the offence and the allegations and the allegations against the accused which are quite grave. And added to it is the conduct of the accused showing that he does not satisfy the triple test for grant of bail.”

His counsel Khalid Akhtar pointed out that the sessions court didn’t mention any of the facts discussed by him. 

Shahrukh had filed the bail application on December 15, 2020 but the hearing on it was delayed. After hearing on January 11, 2021, the order was reserved on January 18, 2021 which got further extended to January 27, 2021 and then to February 3, 2021. The order finally came on February 4, 2021 in which the court rejected his bail plea.

Background of the case

As many as 54 people were killed and 581 others injured in the horrific communal violence that began on February 23, 2020 and continued for four days.

The allegations are that Shahrukh carrying a gun, shot at head constable Deepak Dahiya but the latter saved himself by docking.

The incident was allegedly video recorded by a journalist-Saurabh Trivedi-working with The Hindu newspaper. The video had gone viral. Despite the video being documented as part of the chargesheet, it has not yet been officially provided to the applicant.

Speaking to this correspondent, his counsel and Supreme Court advocate Khalid Akhtar said that his client has challenged the sessions court order of denying bail in the Delhi High Court underlying numerous Supreme Court judgments ruling that the FIR must be lodged instantaneously and any unexplained delay in lodging of FIR must be seen with suspicion as it gives room for motivated and after-thought allegations.

“In the case of Shahrukh, FIR was lodged after a period of around 56 hours without assigning any reasons for delay and the Additional Sessions judge has conveniently ignored this argument despite this argument being supported by two Supreme Court judgments”, he said.

This submission was important for the court to record owing to the fact that the complainant who is the police officer has stated in his FIR that Shahrukh, with intention to kill him, aimed at his head and shot at him and he narrowly escaped whereas in all his media interviews (which was annexed by us both video as well transcript of the interview), he categorically stated that Shahrukh never shot at him, the counsel argued. 

However, the court shrugged off this glaring statement of the complainant by holding that such media interviews are not part of the chargesheet whilst ignoring the fact that in the instant case the complainant and the investigating agency are the police officials themselves. It is just like cherry picking of evidence. 

The court conveniently disregarded the press conference conducted by the police officials who had arrested Shahrukh wherein the police officials themselves had stated that though Shahrukh had pointed a gun at the Constable but he did not shoot at him.

The court goes on to term this glaring contradiction as “minor discrepancy”.

It is amusing as to how a person who narrowly escaped death, could state that such an attempt was never made and it could be termed as minor discrepancy, the defense counsel said.

In another FIR, the statement of complainant Deepak Malik that Shahrukh attempted to kill him, is completey omitted. Moreover, while the incident happened on February 24, 2020, he was hospitalised on March 2, 2020.

Contrary to the contents of the FIR, the Complainant Malik has himself stated, in his interview with the ABP news on February 28, 2020 at 3 minutes and 25 seconds to 3 minutes 33 seconds that “the assailant may have got scared when I told him that we will not spare you and that is why he fired one shot on the side and went away BUT HE DID NOT SHOOT AT ME”.

The counsel argued that the imposition of section 307 is nothing but a gross abuse of power by the police officials in furtherance to their political vendetta.

The Supreme Court has reiterated time and again that the courts are not mere post offices where it accepts whatever is dumped before it. It has to carefully scrutinise what is presented before it.

If we are to judge the conduct of the prosecution in the light of above, we can safely say that prosecution has scant regard for the rule of law and judiciary and it believes that it can do anything, Akhtar remarked.

 Some facts about the case

The alleged offence took place on February 24, 2020 but the FIR was filed on February 26, 2020 (after more than 50 hours of delay) and subsequent to the filing of the FIR, the present accused was apprehended on March 3, 2020.

The criminal justice system works on the guiding principle that “every person is innocent until proven guilty” and yet, contrary to the principles, Shahrukh has been indefinitely incarcerated ever since his arrest.

In stark contravention to such clear position of the laid down law, the petitioner has been languishing behind bars for the last 11 months, without commencement of trial.

Defense counsel Akhtar said that the facts he argued on in the sessions court, were excluded from the orders passed by the Additional sessions judge because the prosecution failed to challenge these facts.

These facts are pertinent to be brought to notice merely to refresh the often forgetful minds of the era and the undeclared dictatorial regime that we live in, where the politically connected people like Kapil Mishra, Anurag Thakur get away with inciting riot which killed several people and the judge who ordered the police to give explanation “as to why the FIRs must be registered against these two BJP leaders” was scrupulously transferred overnight, Akhtar sums up the case.  

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