Denying bail to Shahrukh and granting it to Gujjar: A tale of two standards of justice

Shahrukh Pathan and Kapil Gujjar are the two sides of the judicial system. Gujjar got bail within days while Shahrukh who is still languishing in jail since March 2020 as thecourt denied him bail stating that he is 'at flight risk'.

People would not have forgotten the face of gun-toting Kapil Gujjar who had opened fire at Shaheen Bagh protest site in the presence of heavy police force. He was granted bail by the court within days for his open and unprovoked aggression. 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.

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

While denying bail to Shahrukh, the Additional Sessions Judge, Amitabh Rawat observed, "What is material is the gravity of the offence 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 December15, 2020 and after much delay, it was finally taken up for hearing on January 11, 2021 and thereafter it was reserved for order on January 18, 2021 which got further extended to January 27, 2021, and yet again to February3, 2021; finally the said order was pronounced on February 4, 2021.

Background of the case

On February 24, 2020 the horrific communal violence broke out in North East Delhi claiming 54 lives and injuring 581 people. It is alleged that on the said day at about 1:45 p.m. Shahrukh carrying gun in his hand ran towards the complainant, Head Constable Deepak Dahiya and fired two-three shots on the people around and "when Shahrukh was about 9-10 feet away from the complainant, Shahrukh aimed at the head of Dahiya and shot at him and Dahiya could only save himself by dodging".

This encounter was reportedly video-recorded by one journalist named Saurabh Trivedi working with The Hindu and he had made the video go viral. (Despite the charge-sheet being filed and this video being documnted as a part of the charge-sheet, has not been supplied to the applicant and for this the applicant had filed an application before the Ld. MM court on 02.12.2020 and it is yet to be directed). After about 56 hours of unexplained delay, on 26th February 2020 at about 9.45 p.m. the present FIR was registered under sections 147,148,149,186,216,307,353 IPC & 25/27 Arms Act, 1959.

Speaking to this correspondent, his counsel and Supreme Court advocate Khalid Akhtar told that his client has challenged the sessions court order of denying bail in the Delhi High Court underlining 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 about delay and the Ld. Addl Sessions Judge conveniently ignores 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 a police officer has stated in his FIR that Shahrukh, with intention to kill him, aimed at his head and shot him and he narrowly escaped whereas in all his media interviews (which was accessed by us both in video as well transcript of the interview) categorically stated that Shahrukh never shot at him, the counsel argued.

However, the court shrugged off this crucial 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 our Constable, he did not shoot at him.

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

It amuses us 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 defence counsel said.

"Ironically in another FIR, the statement of complainant Deepak Dahiya changes completely and the part that Shahrukh attempted to kill him is completely omitted. Further, this complainant is hospitalised on 02.03.2020 for the injuries he received on 24.02.2020."

Contrary to the content of the FIR, the Complainant Dahiya 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 in the side and went away, but he did not shoot at me". (emphasis added in text)

The counsel argued that the imposition of Section 307 is nothing but a gross abuse of power by the police officials in furtherance of 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 the above, we can safely say that the prosecution has scant regard for the rule of law and judiciary and it believes that it can do anything any which way unabated, Akhtar underlined.

Some facts about the case

The alleged offence took place on 24.02.2020 but the FIR was filed on 26.02.2020 (after more than 50 hours of delay) and subsequent to the filing of the FIR, the present accused was apprehended on 03.03.2020. That the Petitioner/accused Shahrukh was arrested on 03.03.2020 and subsequently he was produced to the court and the police remand was allowed to interrogate the accused.

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. The Supreme Court has held in Sanjay Chandra vs. CBI that "The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty".

In stark contravention of such clear position laid down in law, the Petitioner has been languishing behind bars for the past 11 months despite the non-commencement of trial, defence counsel Akhtar said. He added 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 lackeys of the mighty like Kapil Mishra and Anurag Thakur get away with inciting riots which killed several people and the judge who ordered the police to give explanation "as to why the FIR's must not be registered against these two BJP leaders" was promptly transferred overnight, Akhtar sums up the case.

Taking cognizance as to how 2 FIRs have been filed against Shahrukh with the same set of facts and witnesses, the Delhi High Court judge, Justice Suresh Kumar Kait has issued notice to the Delhi Police to file the status report by a week and fixed the next hearing on March 10, 2021.