Three months after it arrested three Kashmiri students in Agra for allegedly celebrating the Pakistan cricket team’s victory over India on social media, the Uttar Pradesh police has charged them with cyber terrorism, sedition, promoting enmity between different groups and making statements likely to cause alarm to the public. The chargesheet was presented to the Agra chief judicial magistrate’s court on Tuesday.

The Agra court took cognisance of the matter in an order dated January 27, signalling that prosecution could start.

The three students continue to languish in an Agra jail, denied bail by the court. Their lawyer, Madhuvan Dutt Chaturvedi, said they are now in “illegal custody”. Since the chargesheet included offences against the state, it needed government sanction certifying that the the prosecution could proceed.

“Section 196 of the Criminal Procedure Code [prosecution for offences against the State and for criminal conspiracy to commit such offence] provides that no court shall take cognisance of these offences except with the previous sanction of the state government or the central government as the case may be,” Chaturvedi said.

The sanction was missing in this chargesheet, he said, without which the investigation could not be considered complete even 90 days after the arrest. According to established procedure, he pointed out, this should have paved the way for statutory bail.

The arrest

Three days after Pakistan beat India in a cricket world cup match on October 24, Arsheed Yusuf, Inayat Altaf Sheikh and Showkat Ahmed Ganai were arrested by the police after a Bharatiya Janata Party youth wing leader filed a complaint.

The three Kashmiri students were beneficiaries of the Prime Minister’s Special Scholarship Scheme, meant for students from economically weaker sections in Jammu and Kashmir. They were pursuing a course in civil engineering at Agra’s Raja Balwant Singh Engineering Technical College. A day after the match, the college authorities suspended the trio after finding “objectionable content” in their WhatsApp messenger statuses.

Members of the BJP’s Yuva Morcha, as well as other right-wing groups, also accused the Kashmiri students of chanting “anti-national” slogans. In protests held at the college campus, they demanded stricter action against the students.

After BJP’s complaint, the Agra police registered a first information report against the three students. Among other offences, the FIR booked the three students for “cyber terrorism” under Section 66F of the Information Technology Act. According to this law, cyber terrorism is an offence intended to “threaten the unity, integrity, security or sovereignty of India or to strike terror in the people” by “denying… access to any person authorised to access computer resource” or by trying “to penetrate or access a computer resource without authorisation.”

The students were eventually arrested on October 27 and remain in custody. Their families have struggled to bail them out. The three Kashmiris faced a hostile legal fraternity in Agra after several lawyers’ associations decided not to provide legal help to the accused students. When they were presented at a local court in Agra for the first time on October 28, the students were heckled by the BJP youth wing and some lawyers. The families eventually had to hire a lawyer from neighbouring Mathura district to represent their kin.

Screengra of video showing the three Kashmiri students being assaulted as they were presented in court for the first time. Picture credit: Piyush Rai/Twitter

No government sanction

The courts have not helped with the bail process either. On January 25, as the police presented its chargesheet, Chaturvedi moved a bail application in the Agra court, citing section 167 (2) of the Criminal Procedure Code, which grants the right to default bail after 90 days if the investigation had not been completed. The police chargesheet was incomplete without the state government’s sanction, the application said.

“But the court rejected it without mentioning our averment properly,” Chaturvedi explained.

He added that the cognisance order, issued on January 27, mentioned that the police had applied for the state government’s sanction, and that whenever it was granted, it would be submitted along with the supplementary chargesheet.

According to a 1954 judgment of the Gauhati High Court, the state government’s sanction is required to ensure that prosecution takes place only “after due consideration”, when the “sanctioning authority is satisfied that there is a proper case to put the party on trial”.

However, the January 27 order outlines the next stages of the case. “The order mentions steps which are to be followed after cognisance is taken,” said Chaturvedi. “The question is how does the court know that the sanction will be granted by the state? The state may deny sanction. What will happen then? Therefore, the custody of my clients, after the period of 90 days, is completely illegal.”

He said they were likely to challenge the cognisance order in the Allahabad High Court. Two petitions in the same matter are pending in the high court. One is a bail application by the families of the three students – so far, the bail hearing has been postponed at least eight times. The second application, also filed by the families, seeks the court’s direction to shift the case out of Agra to some other part of Uttar Pradesh.

The Agra court, he pointed out, took cognisance of the case a day after Republic Day, which celebrates the Indian Constitution. “The pious guarantee of personal liberty in the constitution has been ignored in this case,” he remarked.