On 16th July, the Ajmer Sessions Court acquitted Khadim Gauhar Chishti and 6 others in connection to raising the ‘Sar Tan se Juda (STSJ)’ slogans against former BJP spokesperson Nupur Sharma outside the Ajmer Sharif Dargah. Gauhar Chishti is a Khadim of the Ajmer Dargah, who had threatened to behead those who insulted Prophet Mohammad in June 2022. After the video of the incident went viral on social media, Gaurhat Chishti left Ajmer and took refuge in Hyderabad. He was later arrested by the police in July that year. The accused had been languishing in jail ever since. He had also met the killers of Udaipur tailor Kanhaiyalal.
What happened on the day?
According to the court documents, on 17th June 2022 at around 3 PM at Nizam Gate, Gauhar Chishti and others did not follow the conditions imposed by the police on silent protest against former BJP spokesperson Nupur Sharma and started giving provocative speeches using a loudspeaker attached to a rickshaw. At that time, there were 2,500-3,000 people at Nizam Gate. When police tried to convince them to stop, the “Gustakh-e-Nabi ki ek saza, sar tann se juda, sat tann se juda” slogan was raised.
A case under Sections 117, 188, 504, 506, and 34 of the Indian Penal Code was registered. Furthermore, based on the evidence collected, Chishti was found linked to the murder of Kanhaiyalal and one other murder case. It was found that the slogans and provocative speeches could have led to the murders. Section 302 was added to the matter. Interestingly, during the investigation, Siddiqui claimed that the phone that he used to communicate with Muslim groups on WhatsApp was in his room at his house. However, later he claimed his relatives hid it and the phone was never recovered.
The bail application of Gauhar Chishti and Tazim Siddiqui was rejected by the Sessions court
Initially, Saiyyad Gauhar Hussain Chishti approached the Magistrate court for bail. However, on 28th August 2022, his bail plea was rejected. In the court, Gauhar Chishti claimed that he did not say anything against the country or the society. He was handed over the mic by the people and said whatever he felt. There was no intention to cause communal tension. He claimed that he was falsely implicated in the case.
Chishti further claimed that he was not linked to any terrorist organization. His father was old and there was no one to take care of him. The prosecution opposed the bail plea and said that the provocative speech given by him led to the murder of Kanhaiyalal in Udaipur. The court noted that Chishti has a criminal history. Based on the arguments and evidence, his bail plea was rejected.
In the case of Tazim Siddiqui, it was argued that he was implicated falsely in the case. Furthermore, no evidence was found against him. He was falsely linked to the murder of Kanhaiyalal. However, the prosecution opposed the bail and pointed out that the conditions of the silent protest were broken by the accused. His bail plea was rejected.
After the bail pleas were rejected by the lower court, Gauhar Chishti and Siddiqui approached Sessions Court for bail. The judgment in Chishti’s plea was pronounced with the bail plea of Tazim Siddiqui as both pleas were linked to the same case. On 6th September 2022, Sessions court rejected their bail plea. Justice Madanlal Bhati dismissed the petition based on the facts attached to the case.
Arguments from the defense
The defense lawyer appearing for Chishti argued that there was no prima facie evidence to support the charge against his client. The counsel claimed that the initial remand report presented by the police was later falsely substantiated to register the case. Furthermore, he pointed out that the co-accused in the case, Fakar Jamal and Moin Khan were granted bail in the same case by the Jaipur Bench of Rajasthan High Court.
In the case of Tazim Siddiqui similar arguments were presented. The defense argued that his name was present in the original FIR and statements recorded under Section 161 of CrPC. The counsel further argued that Siddiqui’s name was mentioned only in a supplementary statement. Furthermore, the mobile phone using which he allegedly sent the incriminating WhatsApp messages was not recovered by the police. The defense pointed out that there were no pending criminal cases against Siddiqui apart from the current one.
Prosecution’s argument
Replying to the defense’s arguments, the prosecution opposed the bail applications. He presented a charge sheet against Gauhar Chishti and Siddiqui and other co-accused in the case. The prosecution informed the court that the investigation against the additional accused was pending and pointed out that the bail applications of the co-accused were rejected by the same court. The prosecution argued that Chishti and Siddiqui were involved in inciting violence using provocative slogans and messages. He said those provocative slogans led to the horrific murder of Kanhaiyalal in Udaipur.
Previous bail applications and the argument of precedent
The bail applications of Fakar Jamal and Moin Khan were rejected by the same court on 18th July 2022. However, the Jaipur Bench of Rajasthan High Court granted both of them bail on 2nd September 2022. The defense appearing for Chishti and Siddiqui used this precedent to argue that his clients deserve to get bail. However, the court found that the circumstances in the case of Chishti and Siddiqui were different from Jamal and Khan.
Court’s Judgment
After reviewing the evidence and witness statements, the court said that Chishti and Siddiqui were prima facie involved in inciting violence. The court said that the charges against both of them were serious. The court further added that if the bail was granted to them, they might tamper with the evidence or try influencing the witnesses. The court noted the active role of the accused in the case and pending investigations against them while rejecting the bail. The court said that the ongoing custodial investigation was in place and it was necessary to continue their custody to ensure law and order in the region.
The bail plea of Gauhar Chishti rejected multiple times by the Rajasthan High Court
Following his bail plea rejected by the Sessions Court, Chishti approached the Rajasthan High Court for bail. On 30th September 2022, Chishti’s first bail plea in the Rajasthan High Court was rejected. The prosecution argued that the “peaceful protest” was organized with the state’s permission. Furthermore, the FIR was filed after a delay of seven days and originally bailable offenses were added. However, after pressure from the media, the state added Sections 302 and 115 of the IPC which are non-bailable without any evidence.
It was argued that co-accused in the case were granted bail in the matter. Chishti’s counsel argued that his wife was 8 months pregnant and father was old and ailing and he was the sole bread earner of the family. It was further argued he had no role in the Kanhaiyalal and Umesh Kohle murder cases.
The prosecution argued that Chishti’s case was highly distinguishable from the co-accused case which was on bail. It was contended that Chishti was a habitual offender and his case was on a different footing.
It was further contended that the permission was granted only for a peaceful protest with conditions. The terms and conditions included that it was the responsibility of the organisers to maintain law and order during the protest. Furthermore, conditions included that there should be no provocative speeches or slogans during the protest that might hurt the religious sentiments of anyone. However, despite the terms and conditions, “Gustakh-e-Nabi ki ek saza, sar tan se juda” slogans were raised in the presence of 3,000 people.
It was further submitted that the video clips of the slogans and speech were circulated widely online leading to the Udaipur and Amrawati incidents where victims were beheaded on account of religious hatred.
It was further contended that Chishti was a habitual offender and every year, as a precautionary measure, prohibitory orders were issued against him to maintain peace and communal harmony.
The court said, “The alleged recovery of multiple mobile phones and the fact of the active arrest of the applicant made from another State further reflects the alleged active participation of the applicant. The prohibition orders passed in the case of the applicant, every year under Section 107 of CrPC, also distinguish the case of the applicant from the co-accused who have been enlarged on bail and further reflect his criminal antecedents. The slogans raised in the said case were different and they were not provocative, motivated, vindictive, and lonesome towards the abetment of crime as per the slogan raised. Learned AAG had also submitted that on account of the said slogans, certain victims were beheaded at Udaipur and Amravati. Considering the above, it cannot be ruled out that if the applicant is released on bail, he can pose a threat to the society at large and affect the law and order situation in the State.” Based on the evidence and circumstances, his bail was rejected without any comments on the merits or demerits of the case.
Gauhar Chishti again approached the High Court for the bail. On 24th April 2023 claiming change in circumstances. His counsel argued that the co-accused against whom the same charges were framed were out on bail on the orders of the High Court. Furthermore, it was argued that Chishti could not affect witnesses as primary witnesses were police personnel. Hence, he should be granted bail on the grounds of parity.
The prosecution argued that his bail was rejected based on merit and said there was no material change in the circumstances. It was argued that if he was released on bail, he might disturb peace and harmony and might cause violent protests. Furthermore, multiple video CDs and mobile phones were recovered from him.
The court rejected the bail considering the overall facts and circumstances of the case but without commenting on the merits or demerits of the case.
Later, Chishti approached the High Court claiming he should be granted bail as his wife and infant daughter were not medically fit. However, on 4th August 2023, the court dismissed the plea stating the daughter and wife of Chishti live in the same household as the family where several adults can take care of the medical needs of both. Furthermore, the court asked the Jurisdictional Police Officer to arrange a good pediatric physician to duly evaluate the child’s health and prescribe the required course of treatment in the interest of justice. Also, it was directed to arrange for a physician to provide necessary medical assistance to the wife.
Tazim Siddiqui granted bail by the Rajasthan High Court
On 29th September 2022, the Rajasthan High Court granted bail to Tazim Siddiqui. It was argued that co-accused in the case were granted bail. The bail plea was accepted based on the overall facts, bail to co-accused and circumstances of the case. However, the court did not comment on the merits or demerits of the case. He was released on a personal bond of Rs 50,000 and two sureties of Rs 25,000 each.
The bail plea of Faqar Jamali and Moin Khan was rejected by the Sessions Court
Initially, Jamali and Khan approached the Magistrate Court for bail but it was rejected. Then they approached Sessions Court for bail. The defense argued that Jamali’s name was not included in the FIR. Furthermore, he argued that Jamali was not directly involved in raising the slogans or killing anyone.
In the case of Moin Khan, the defense claimed that he was not linked to the matter in any way. He further argued that Khan’s son was getting married on 24th July and he should be granted bail to attend the wedding.
The prosecution opposed the bail and said that the investigation team found evidence that these two were involved in giving provocative speeches. Furthermore, both of them were present at the scene when the slogan “Gustakh-e-Nabi ki ek saza, sar tann se juda” was raised by Chisthi. They appeared in the video recorded by Chisthi’s supporters.
The prosecution further added that on 30th June 2022, when Jamali was presented in the court, he showed a “V” sign with his fingers which means “victory”. It showed he believed that they succeeded in their motive. The prosecution also informed the court that Jamali threatened the investigating officer that he should talk to his deputy and CI properly otherwise the situation with turn against him and he would shoot them both. The incident was reported by Constable Bharat Singh. However, the defense rejected the claims and accused police of falsely adding the allegations.
In the judgment, the court said that the argument that Jamali’s name was not there in the first FIR could not be accepted. Furthermore, the court took note of the fact that the accused were present at the scene when Chishti gave a provocative speech. Based on the arguments and evidence present, the court rejected the bail.
On 2nd September 2022, Jamali and Khan were granted bail by the Rajasthan High Court. The court considered the submissions by defense counsel that they were not named in the FIR. Considering all facts and circumstances without expressing any opinion on the merits or demerits of the case they were granted bail on personal bond of Rs 50,000 each with two sureties each of Rs 25,000.
The bail application of Riyaz Hassan Dal was rejected by the Sessions Court
In the case of Riyaz Hassan Dal, the defense argued that he was dragged into a false case without any evidence. He further argued that the complainant, who is a constable, named him on the directions of his senior officials. He further argued that he was named in the case to destroy his life by making him an accused in the Kanhaiyalal murder case.
The defense said that the allegations leveled against Dal in the charge sheet had no basis and could not be proven. He argued that his client was not at flight risk and was ready to comply with all conditions imposed for bail.
The prosecution opposed the bail stating that the High Court rejected the bail plea of Chishti on 30th September 2022. He further argued that his name was not there in the FIR as there were around 3,000 people present at the scene. It is not essential that every name has to be included in the FIR. However, the role of the accused in the procession was well established. He was present at the meeting that was held before the silent protest which made it clear that he was aware of the planning of the crime. Furthermore, he was seen in the videos recorded at the scene.
The defense argued that though Jamal and Khan got bail from the High Court, the bail pleas of Chishti and Siddiqui were rejected by the High Court. In that case, the argument of precedent cannot be taken into consideration.
Based on the arguments and evidence, the Sessions Court rejected Dal’s bail plea.
On 7th November 2022, the Rajasthan High Court granted bail to Riyaz Hassan Dal. The bail plea was accepted based on the overall facts and circumstances of the case. However, the court did not comment on the merits or demerits of the case. He was released on a personal bond of Rs 50,000 and two sureties of Rs 25,000 each.
