HC set to decide on cartoonist Kishore's bail plea on Wednesday

The High Court will decide on a bail appeal from cartoonist Ahmed Kabir Kishore in a case under the Digital Security Act on Wednesday.

Justice M Enayetur Rahim and Justice Md Mostafizur Rahman fixed the date after hearing a bail plea from Kishore on Monday.

Kishore was arrested with writer Mushtaq Ahmed, who later died in jail, on charges of propagating disinformation against the government on social media in a case under the Digital Security Act.

Barrister Jyotirmoy Barua stood for Kishore at the hearing, while Deputy Attorney General Md Sarwar Hossain represented the state.

Writer Mushtaq Ahmed, co-accused in the case, died in jail on Feb 25. His bail was sought in an application before his death, along with Kishore’s.

When Jyotirmoy verbally informed the court about Mushtaq's death, the judges asked him to submit an affidavit on the matter.

The case was started against 11 people by Deputy Assistant Director Zahirul Islam of RAB-3 with Ramna Police Station.

Kishore and Mushtaq have been in prison for the past nine months, while Minhaj and Didar were granted bail by the court in September last year.

In the hearing, Jyotirmoy said he had filed bail petitions for two accused - Ahmed Kabir Kishore and Mushtaq Ahmed.

“Mushtaq Ahmed died in the high security prison on Feb 25. I am presenting the bail petition on behalf of the first petitioner Ahmed Kabir Kishore.”

Justice Enayetur said, “Mr Jyotirmoy Barua, I think it’s better to say this through an affidavit. It won’t be appropriate to turn it down [Mushtaq’s bail application] as not pressed. We can take some information from newspapers, if we say it was abated. I think it would’ve been better if it was stated through an affidavit.”

Jyotirmoy said, “I have a submission on the cause of his death.”

Justice Enayetur responded: “That’s a different matter. Whatever the cause of death, be it natural or accidental, it’s a separate issue. There is no scope to dismiss his petition as not pressed as he is no more.”

Deputy Attorney General Md Sarwar Hossain interjected by saying, “The matter must be stated through an affidavit. Then it will be abated.”

Justice Enayetur said, “As it’s being abated, it needs to be on record. An affidavit has to be filed for this. We are reserving the day after tomorrow (Wednesday) for the order. You will bring the affidavit on that day.”

Jyotirmoy went, “The charges against Kishore were under Articles 21, 25, 31 and 35 of the Digital Security Act. Both of them (Mushtaq and Kishore) were arrested on May 5.”

He read out the description of Kishore’s arrest at his Kakrail home from an FIR, which also included the seizure of mobile phone, computer and hard-drive during the arrest.

Counsel Jyotirmoy pointed out that the FIR failed to mention how the law and order was affected or how the confusion was created.

The lawyer argued that Kishore is a cartoonist. What do cartoonists do worldwide? They criticise those within the government over different activities, and drawing cartoons of them is not a new phenomenon.

“He is not only known as a cartoonist, but also as a human rights activist. He’s won awards in different places of the world especially as a spokesperson for the third-gender people. While in jail. he’s received international acclaim for being one of the top cartoonists

“They apprehended a cartoonist, then retrieved information from his mobile phone and hard drives. He had no idea about anything before this. I’m saying this because there are several technical terms in the Digital Security Act.”

“The language of the laws are such that ‘If he reveals anything’ or ‘spreads anything’. Meaning, something that already has been revealed or spread… It means Ahmed Kabir Kishore revealed, spread such information that is anti-state or confusing about coronavirus pandemic issues or rumours on different leaders of the governing party.

“The one who complained already has all the information. It’s not like filing a case against me after drawing information from my hard drive at my home. The law is not like that. When all the evidence has gone to the third party, who has all the information, a case has to be filed using those.”

The senior judge of the bench said, “The case document says the accused used several apps to chat, also posted to Facebook.”

Jyotirmoy said, “I talk over WhatsApp and post to Facebook, they need to have that. They’re carrying out cyber surveillance. That’s how they came to know about it.”

Justice Enayetur said, “I don’t know, maybe they went to him after identifying him on Facebook. This act is new in our country. Everyone knows little. Issues like a lack of trained investigators are also there.”

Jyotirmoy then said, “I completely agree with you. But the police won’t get its benefit, the accused will.”

“The case was filed on May 5. According to Article 40, chargesheet has to be filed within 60 days. If not, another 15 days are given. Failure to do that will require asking for another 30 days from the cyber tribunal and completing the investigation within 105 days in total.”

“They filed chargesheet against accused Didarul Alam, late Mushtaq Ahmed and Ahmed Kabir Kishore on Jan 15.”

Jyotirmoy said, “The tribunal rejected the chargesheet while instructing the matter to be investigated again. The report was scheduled to be submitted on Feb 23. Mushtaq and Kishore were produced before chief metropolitan magistrates court that day.”

“Kishore then told us that he had been physically tortured in custody. He almost lost his right ear due to the torture. It caused wounds in his left leg.”

The lawyer added that these facts were verbally stated at a hearing in the metropolitan sessions judges court. But his bail was not granted.

“One of the accused died due to illness. One of them is a famous cartoonist and has a good standing. What’s more is that he is terribly ill. A remand petition was filed in the meantime. I don’t know under which law they had filed the remand petition after the chargesheet had been submitted.”

The remand plea was turned down, Jyotirmoy said, but the accused had to be produced before court for a remand petition. But the hearing went ahead without the accused being present.”

“I thought that he would be present. So there was a plea from the accused that torturing Kishore in custody was a criminal offence according to the Torture and Custodial Death (Prevention) Act-2013. But as he was not brought out of jail, we did not get the opportunity to present the petition.”

Justice Enayetur then said, “This has no relation to that.”

The lawyer replied, “I’m telling you this because I’ve filed a bail petition showing his illness as the cause.”

Later the court reserved Mar 3 for hearing and order and concluded the hearing.