2007 Hate Speech: Supreme Court Dismisses Azam Khan’s Plea to Transfer Trial out of UP

The Bench of Justice M.M. Sundresh and Justice N.K. Singh refused to entertain the transfer petition, observing that the grounds raised, particularly the alleged alteration of a video clip to an audio file, did not warrant shifting the trial to another state.

“This is not a ground for transfer,” Justice Sundresh said during the hearing, while rejecting the petition. However, the Court clarified that Khan would be at liberty to pursue appropriate remedies with respect to the alleged tampering of records.

“This disposal of the petition will not stand in the way of the petitioner working out remedy with respect to the change of court records,” the Court said.

Allegations of Tampering and Prejudice

Appearing for Khan, Senior Advocate Kapil Sibal argued that the original evidence in the case; a video clip of the alleged 2007 speech, was improperly converted into an audio file in court records. Sibal contended that such manipulation prejudiced the petitioner’s right to a fair trial and would lead to wrongful conviction.

“If you are allowed to change it from video to audio, that audio will be taken up and I will be convicted. The court records have been changed,” Sibal submitted.

Previous Relief in the Same Case

In a related development last year, the Bench of Justice A.S. Bopanna and Justice P.K. Mishra had stayed a trial court order requiring Azam Khan to provide a voice sample for comparison with a CD-recorded speech allegedly delivered by him at a 2007 rally in Rampur.

That interim relief was granted after the Allahabad High Court had declined to intervene, noting that Khan’s primary objection, that the electronic evidence lacked certification under Section 65B of the Indian Evidence Act, was not fatal at that stage, as such certification could be submitted later.

In a detailed transfer petition filed though AoR Lzafeer Ahmad B F under Section 406 of the Code of Criminal Procedure, Khan has sought transfer of Special Sessions Trial No. 37 of 2018 (State v. Azam Khan), pending under Sections 504 and 171(G) IPC, Section 125 of the Representation of People Act, and Section 3(1)(X) of the SC/ST Act. The case pertains to a speech allegedly made by Khan on August 7, 2007, which was alleged to be derogatory and violative of the Model Code of Conduct.

The petition claims that the trial has been irredeemably compromised by illegal tampering of court records and prosecutorial misconduct. It specifically points to an instance where the term “video cassette” in a prosecution witness’s testimony was overwritten with “audio cassette” without any ratification, signature, or judicial seal. This alleged tampering, the petition says, was intended to align the record with the subsequent production of an audio tape, even though the prosecution had previously maintained that a video recording existed.

Khan has also cited the cross-examination of PW-5, Sanjay Kumar, the videographer, who admitted before the trial court on August 9, 2023, that his statement was falsely recorded by the investigating officer under pressure. He also stated that Exhibit A-6, allegedly produced by him, was given under police coercion. These disclosures, the petition argues, demonstrate a larger pattern of witness intimidation and prosecutorial manipulation.

The petition further alleges that systemic procedural lapses have rendered the trial fundamentally unfair. Key forensic evidence; the alleged cassette, was not produced for 15 years, was not part of the original charge sheet, and was never examined for authenticity due to lack of proper documentation. No certificate under Section 65B of the Indian Evidence Act was filed, and the chain of custody of the evidence remains unverified.

Azam Khan contends that the pattern of procedural abuse is not limited to this case alone. He cites similar instances of tampering and witness manipulation in other criminal cases pending against him before the same MP/MLA Court in Rampur. These include falsified recovery memos and post-dated insertions in official records, which have been admitted in cross-examinations of prosecution witnesses in unrelated cases.

The petition also highlights the political context surrounding the prosecution, alleging that the state machinery is acting at the behest of the ruling BJP to hound Khan and his associates. Referring to public speeches by Union Home Minister Amit Shah ahead of the 2022 Uttar Pradesh elections, the petition notes how Khan was branded as part of a so-called ‘Nizam’ of strongmen, alongside other political rivals, and accused of criminal activities from public platforms.

“This atmosphere of prejudice and state-sponsored hostility makes a fair trial impossible,” the petition argues. It urges the Supreme Court to consider the cumulative effect of political vilification, witness intimidation, and procedural violations while deciding the request for transfer.

In 2022, the Supreme Court had already taken note of the pattern of cases filed against Khan while granting him interim bail under Article 142 of the Constitution. The Court had termed his situation “peculiar” and had acknowledged the appearance of a systematic attempt to keep him incarcerated.

In a related news, on February 10, Khan along with his son, Mohammed Abdullah Azam Khan were granted bail by the Apex Court in a case relating to machine theft.

On May 24, 2024, Khan was granted relief by the Allahabad High Court in a fake birth certificate case by staying his conviction. However, the court did not stay the conviction of his wife, Tanzeen Fatima, and son, Abdullah Azam, though their pleas for suspension of sentence were allowed and they were granted bail.