Delhi: On 1 December 2023, the Uttar Pradesh police registered their sixth first information report (FIR) against Kafeel Khan, even though the 44-year-old paediatrician, a once vocal critic of the governments run by the Bharatiya Janata Party in the state and the Centre, had left his hometown Gorakhpur with his family in 2020 to escape further criminal action.

Based on an alleged conversation between four or five unknown people in Lucknow on 1 December, where they talked about Khan, the police have accused him of being a “secret” distributor of a book they (Muslims) wanted to use in spreading public discord and overthrowing the government of “Hindus”.

Khan’s book, The Gorakhpur Hospital Tragedy: A Doctor’s Memoir Of A Deadly Medical Crisis, published in December 2021, is a retelling of the tragedy when the Baba Raghav Das (BRD) Medical College in Gorakhpur ran out of liquid oxygen on 10 August 2017, costing the lives of 63 children, and his role in securing oxygen cylinders; an account that many believe was captured in Shah Rukh Khan’s movie Jawan, although the actor who played him said he didn’t know whether Khan inspired the character. 

Still, Khan wrote a letter thanking Shah Rukh Khan and told several publications he believes the FIR registered against him was because of the attention he and the tragedy received after the movie, once again reminding the public of government failure. 

A month after an initial round of interviews after news of the FIR broke, Khan did not respond to Article 14’s request for a conversation.   

The FIR says, “Dr Kafeel Khan Gorakhpur Hospital Tragedy–From Hospital to Jail” was written on the first page of the book. The complainant said the book neither had the name of an author nor any publisher, alleging that it was “secretly published” and “secretly circulated” by Khan among “apne log” (our people—Muslims) before the Lok Sabha election and they were collecting money for their “secret plan”.

There is no ban on the sale of Khan’s book published three years ago, and it is available online.

The FIR said, “Four-five people behind a hut near the LDA colony were using foul language against the state government, its ministers and officials while talking to someone on the phone”, and they were talking about a riot to “overthrow” the government.

The complainant alleged: “They were saying that we don’t want the central government of Hindus to be made under any circumstances. That they will also overthrow the Yogi government even if they have to instigate riots in the state.”

The police booked Khan under 10 sections of the Indian Penal Code, 1860: sections 143 (unlawful assembly), 153B (assertions prejudicial to national integration), 465 (forgery), 467 (forgery to make or transfer any valuable security, or to receive money), 471 (using forged as genuine), 504 (insult to provoke breach of peace), 505 (statements causing mischief), 298 (uttering words intended to insult religious feelings), 295 (defilement of a place of worship/sacred object) and 295A (malicious acts to outrage religious feelings). Other sections include 3 and 12 of the Press and Registration of Books Act, 1867.

The FIR, registered at the Krishnanagar police station of Lucknow south district, is a copy of the complaint filed by a man called Manish Shukla, a resident of Lucknow, displays a non-application of mind. 

In a conversation about the FIR against Khan, Supreme Court advocate Shahrukh Alam said that the content of Khan’s book, which is about the Gorakhpur tragedy, was not the same as the allegations raised in the FIR about secretly distributing the book in a larger plan to carry out riots and overthrowing governments, suggested the FIR was a “made up story”. 

Alam described the FIR as “Kafkaesque”.

The question then is whether the police should conduct a preliminary investigation when a complaint appears made up. The police often hide behind Lalita Kumari vs. Government of Uttar Pradesh and Ors. (2013), where the Supreme Court laid down that if a complaint shows a cognisable offence (153B, 505), the police must register an FIR. This leaves people on the receiving end of malafide FIRs with no remedy except to move the court to quash them. 

However, Alam said the police often use the law arbitrarily, and when they don’t want to register an FIR, they will keep doing preliminary inquiries. 

Many, including even rape survivors, struggle to get FIRs registered in Uttar Pradesh (here and here). 

For instance, the UP police took more than 1.5 years to register an FIR involving a 62-year-old Muslim man who was pulled inside a car by a group of four men, beaten, pulled by his beard, and hurled communal slurs at him. The Supreme Court had, in February 2023, expressed “distress” at the laxity shown by the police in the alleged hate crime.

The FIR against Khan was registered the same day as the complaint was filed. 

Khan’s name was added in January 2021 to a list of history-sheeters in Uttar Pradesh—names of those with a long record of serious crimes.

“The administration has decided to fix him, and when things go in his favour in one case, there is another and then another,” said Roop Rekha Verma, a former acting vice-chancellor of Lucknow University and professor of philosophy and one of the few remaining activists in UP who continues to be vocal.

Verma, who stood surety for Siddique Kappan in September 2022, which allowed for the Kerala journalist to be released on bail after more than two years in jail, said, “It is very, very difficult to be an activist because the distinction between the right to speak out against injustice and the opposition to the state are being mixed up.” 

Backstory 

Khan’s life was upended in the days and months after he arranged oxygen cylinders to save children at the BRD Medical College in Gorakhpur on 10 August 2017, when a private vendor named Pushpa Sales Private Limited stopped the supply of liquid oxygen because the principal of the college had not released payment for nearly six months. 

More than 70 patients, including 63 children, lost their lives.

Khan, who was a lecturer at the department of paediatrics, reportedly spent money to buy oxygen cylinders and sought help from a paramilitary unit to ferry oxygen cylinders to the hospital. 

Hailed a hero in the media, Khan seemingly became a scapegoat after the six-month-old government of Chief Minister Yogi Adityanath came under fire for the tragedy, which had unfolded in Adityanath’s political bastion from where he was elected to parliament five times before Prime Minister Narendra Modi chose him to become the chief minister of the country’s largest state. 

The state pinned the massive failure on Khan by charging him for culpable homicide, medical negligence and corruption, including seven other people.

In April 2019, an inquiry of the medical education department, conducted by investigating officer Himanshu Kumar, then principal secretary (stamps and registration department), found Khan not guilty of medical negligence and noted that he made “concerted efforts” to arrange for oxygen cylinders and “with a lot of dedication took every possible step” to control the situation on 10-11 August 2017.

Still, Khan remained suspended even though seven other accused were reinstated. 

The State initiated a second probe in February 2020, claiming “some facts were not taken into account” by the earlier probe committee. Notably, the government later withdrew the second departmental enquiry “subject to liberty being reserved for the respondents (State) to proceed in the matter afresh”.

Khan’s service at BRD Medical College was terminated in November 2021.

His petition challenging his termination from services at BRD Medical College has been pending in the Allahabad High Court since February 2022. 

On 5 December 2023, the High Court granted the Uttar Pradesh government one last opportunity to file its response to Khan’s plea.

The Sixth Case

The complainant said he chose not to confront the men he claimed were plotting against the government because they could be “terrorists”, or they “could have been armed or had bombs”. Instead, he called two or three friends over the phone, and together, they called out to the men, who ran away in the dark.

“But they dropped the book in the chaos. A careful examination of the book revealed it did not have the name of an author or publisher,” the FIR said. 

According to the complainant, the book, “Dr Kafeel Khan Gorakhpur Hospital Tragedy–From Hospital to Jail”, was written on the cover page of the book, and the back page was about the incident on 10 August 2017 at the BRD Medical College, Gorakhpur involving “an innocent doctor”.

The complainant said that although the inquiry concluded that there was no proof of corruption and medical negligence on Khan’s part, matters are still pending in court. He said the then-chief minister, health minister, and senior administrative officers have been accused of corruption. There are 22 chapters in the book about the poor and deteriorating government health facilities. 

The complainant said the names of such officials are mentioned with the intent to “incite hatred”, “enrage a specific community”, to “spread class conflict”, and “communal riots”, and the whole story was concocted based on “unverified material and forged documents” with an attempt to garner sympathy and establish Khan’s innocence. 

Assumptions 

The sixth FIR against Khan booked him and four or five unknown persons, none of whom are named or identified. Other than the complainant, there are no other witnesses. 

The names of the “2-3 friends” the complainant claimed to have called to the scene have not been mentioned or cited as witnesses. 

Each of those allegedly at the scene of the crime disappeared in the dark, yet Khan was named as the main accused even though he was not present. 

Further, there was no evidence as to whether the alleged book left behind by the four or five persons was written by Khan, as the complainant himself mentions that the book neither had the name of the author or publisher.

The FIR also failed to note whether the police seized the alleged book. 

The complainant alleged that the book was based on “unverified material and forged documents”, but how could Khan be accused of forgery when it was unclear whether the book in question, with no name of the author or published, was his book? 

Nothing To Do With The FIR 

Nothing in the complaint is related to section 295 (defilement of a place of worship/sacred object), but the UP police have invoked it in the FIR. Another example is the offence of unlawful assembly under section 143, even though Khan was not present at the scene of the alleged meeting behind the hunt in the LDA colony. 

N.C Asthana, who retired as the director general of police of Kerala, in a May 2020 piece for The Wire, wrote about “usual methods by which the police abuse their powers”.

According to Asthana, the police often “invoke sections of law much in excess of what might have really transpired, invoke sections of law the very ingredients of which are not found in the FIR, invoke sections of law, which are bogus in the sense that nothing of that sort might have happened, and rope in even those people in a case, who might not even be present at the place at the time of the incident”.

The Years In FIRs 

After the BRD Hospital oxygen tragedy in 2017, which claimed the lives of over 63 children, Khan was slapped with sections 308 (attempt to commit culpable homicide), 409 (criminal breach of trust by public servant), 120B (criminal conspiracy) of the Indian Penal Code, 1860, as well as section 8 (taking gratification, by corrupt or illegal means, to influence public servant) of the Prevention of Corruption Act, 1988.

Khan, who put out a video on social media about the incident, was accused of using social media to gain public sympathy and was also implicated under section 66A of the Information Technology Act, 2000, even though the Supreme Court had in March 2015 struck down the provision for being unconstitutional. 

Seven months after being arrested on 2 September 2018, Khan, who was lodged in Gorakhpur district jail, was granted bail by the Allahabad High Court on 25 April 2018. 

In the order granting bail, a single bench of Justice Yashwant Verma observed that no material on record could establish medical negligence on the part of Khan.

While he was out on bail in the matter, Khan was arrested on 22 September 2018 for allegedly barging into a government hospital in Bahraich district, where he had gone to enquire about the deaths of nearly 70 children who had died over a short span of 45-50 days.

Khan spent 45 days behind bars before securing bail in the second matter, but within a day of his release, he was arrested in a third case of fraud, which had then been pending for over nine years.

On 12 December 2019, Khan delivered a speech at the anti-CAA protest at Aligarh Muslim University and was arrested by the Uttar Pradesh police more than a month later for allegedly making “inflammatory” and “provocative” statements. 

This time, he was charged under sections 153A (for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 153B (imputations, assertions prejudicial to national integration), 109 (punishment for abetment) and 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) of the IPC.

On 10 February 2020, Khan was granted bail by the chief judicial magistrate but was not released from Mathura jail.

Three days later, on 13 February 2020, the National Security Act (NSA) 1980, which allows for preventive detention of upto 12 months without charge, was invoked against Khan. The district magistrate, Chandra Bhushan Singh, said Khan’s release would be a “threat to public order” and the detention order was reissued twice. 

For nearly seven months, from 13 February 2020 to 1 September 2020, Khan remained in jail until the Allahabad High Court found no causal link between the alleged speech made by Khan in December 2019 and the belated imposition of the NSA in February 2020, ordering Khan’s immediate release. 

The judgement noted that “a complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It also nowhere threatens peace and tranquillity of the city of Aligarh”. 

Contrary to the state’s claim, it found that “the address calls for national integrity and unity among the citizens while also deprecating any kind of violence”.

Still, the UP government, as well as the Union, sought to challenge the order of the Allahabad High Court, arguing that Khan had a history of committing offences, which led to his suspension from service, registration of police cases and the invocation of the NSA against him.

The Supreme Court in December 2020 dismissed the appeal, holding that it had no reason to interfere with the High Court’s order.

By this time, Khan had already spent almost 500 days in jail over four years:—nine months for the BRD oxygen tragedy in 2017, nearly 35 days in Bahraich, 23 days in the fraud case, and seven and a half months in Mathura jail for the anti-CAA protest. 

In March 2022, a fifth FIR was registered against him for “forcibly entering” an ambulance in Deoria district hospital to examine a woman patient and creating a hindrance in government work. The oxygen cylinder in the ambulance in which the woman was brought was empty, a fact confirmed by the ambulance driver, the complainant in the case. 

Khan was booked under sections 308 (attempt to commit culpable homicide), 409 (criminal breach of trust by public servant), and 120B (criminal conspiracy) of the IPC. 

(Mani Chander is a lawyer based in New Delhi.)

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