Additional Sessions judge Tarun Saharawat has been critical of the investigation carried out by the National Investigation Agency (NIA) in the case of Kashmiri photojournalist Kamran Yousuf, and has called out the agency for not providing credible evidence despite the number of opportunities provided in the bail hearings. Yousuf’s bail application was accepted on Monday by the judge in the NIA Special Court in Delhi, after six months of his arrest. The detailed order for Yousuf’s bail was released on Tuesday.
Yousuf was arrested in September last year on charges of stone pelting and conspiracy as part of a larger Jammu and Kashmir terror funding case. The NIA has used Yousuf’s presence at sites of various stone pelting incidents as the primary evidence against him. However, the judge has pointed out in the bail orders, “NIA has not placed on record any single photo/video showing that the applicant/accused was indulging in stone pelting activities at any site.”
Warisha Farasat, the advocate fighting Yousuf’s case, has maintained that Yousuf was present at those incidents only to cover them as part of his job as a photojournalist, and that his presence alone is not sufficient to prove anything. The judge in the bail orders has agreed to this point of view.
In the chargesheet, and in previous hearings of the case, NIA has argued that Yousuf is not a bonafide journalist since he did not cover any developmental activities being carried out by the government. The defence had fought this charge by showing the judge various government events that had been covered by Kamran. In the bail orders, the judge is also in disagreement with NIA saying, “…the applicant/accused has shown himself as a bonafide photo-journalist of the disturbed areas of J&K.”
The judge also admonished NIA for not providing evidence to prove any direct linkage between Yousuf and the other co-accused. NIA has levied charges of conspiracy against Yousuf saying he was in touch with the other accused directly or indirectly. The investigation agency gave a list of phone numbers with whom Yousuf had been in contact with as part of his alleged indirect links with the other accused. But the agency did not furnish any details of the owners of these numbers. The judge says in the orders, “it is not explained as to why the prosecution did not make them as accused in this case or why did they not investigate on their involvement/participation in the alleged offences notwithstanding the fact that the present application is pending for disposal for last more than four months even after filing of the chargesheet about 50 days back. It is surprising to note that IO (Investigating Officer), NIA is not able to provide details of these persons till date.”
The NIA has also cited statements by three protected witnesses as evidence against Yousuf. The judge has written in the orders that it was pointed out to him by the defence that the witnesses are security personnel, which makes them interested witnesses. Their statements alone cannot amount to anything unless corroborated by irrefutable evidence.
Further, the bail orders say, the NIA has said in the chargesheet that the stone pelters are masked. The defence raised the question that in such a case, how were the witnesses able to identify Yousuf? The judge also observed that no test identification parade was conducted by NIA for identification of the accused, as per procedure. The NIA claims that photographs were given to the witnesses for identification of the accused, but these were not attached to the statements. The judge pointed to a 1994 Supreme Court ruling which said that identification on the basis of a photograph to hold the same value as a test identification parade is gross injustice to the suspected person.
The judge has further written that there are no charges against Yousuf saying he is a member of any banned organisation, no direct or indirect linkage of Yousuf with other accused has been established, Yousuf has not been found guilty in any such offences or terrorist activities in the past, and no material, explosive or otherwise, has been recovered from him.
The bail order additionally says that considering the witnesses are protected and members of security personnel, there is no chance of Yousuf influencing or threatening them and tampering with evidence. On the grounds of all the above mentioned facts, the judge has said in the orders that Yousuf is entitled to be released on bail.