On October 23, 2020 the Delhi High Court through a Single Bench of Justice Suresh Kumar Kait granted bail to one Faizan Khan accused in the Delhi riots case booked under Unlawful Activities (Prevention) Act in the matter of Faizan Khan vs State NCT of Delhi (Bail App. No. 2725 of 2020). The accused was directed to furnish a bail bond of Rs.25,000 and to not tamper with any evidence while out on bail. Senior Advocate Salman Khurshid with Advocates Azra Rehman, Aadil Singh Boparai, Ragini Nayak appeared for Faizan Khan. The Delhi Police was represented by ASG SV Raju with SPPs Amit Mahajan, Rajat Nair and Advocates Shantanu Sharma, A Venkatesh, Guntur Pramod Kumar, Dhruv Pandey, Sairica Raju, Shaurya R Rai.

The Single Bench heard both sides of the matter and opined that the accused “deserves bail”. “It is pertinent to mention here that the onerous conditions/embargo under section 43D (5) of the UAPA, 1967 will not be applicable in the present case qua the petitioner herein as per the material on record and the investigating agency’s owns status report, which does not disclose the commission of the offences under the UAPA, 1967, except bald statements of the witnesses”, the Bench said.

Section 43D (5) provides that no accused shall be released on bail unless a Public prosecutor has been given an opportunity of being heard on the application for such release or that the court thinks that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Background

An application was filed through Faizan’s counsels to seek bail in pursuance of an FIR registered at Police Station Crime Branch, New Delhi for offences of rioting and criminal conspiracy under the relevant sections of the Indian Penal Code. In response to this Bail application, the State filed a status report on March 6, 2020 which claimed that the Crime Branch had received information that the Delhi riots of February 2020 were pre-planned and “the same were hatched by one Umar Khalid, a student of Jawahar Lal University (JNU) and his associates and that all linked with different-2 groups.” The status report further submitted that a Jamia Coordination Committee (JCC) was set up that included various other organizations with a pre-determined strategy of violent activities under the garb of anti-citizenship law protests in parts of north east Delhi.

Furthermore, offences of murder, attempt to murder, obstructing a public servant on duty, mischief by explosive substances etc of the Indian Penal Code and relevant sections of the Arms Act and Prevention of Damage of Public Property Act were added in the present case on March 15, 2020. On April 19 offences of terrorist activities and criminal conspiracy under the UAPA were added on further investigation.

Charges of wrongful restraint under the IPC were added on June 4, offences of cheating, forgery, fraudulently using documents or electronic records under IPC were added against Faizan on July 29.

As per the Delhi Police, Faizan Khan and one of the charge-sheeted accused, Asif Iqbal Tanha acted in “connivance with each other” and executed the “preparatory work” for the commission of the unlawful and terrorist acts. The specific allegation against Faizan was that he activated the SIM card while working as the authorized Airtel representative at a store called Golden Communication. This SIM card was later used by another accused, Safoora Zargar (who is out on bail) in the name of "Jamia Coordination Committee" for managing various sites and mobilising Muslim people and directing them to CAA protest sites which led to chakka jaam and riots, Delhi Police has claimed.

Additional Solicitor General for the Delhi Police opposed the Bail application and said that there was reason to believe that there was a “deep rooted conspiracy to disrupt the normal activity in Delhi” which was carried out very systematically by individuals who were capable of “camouflaging violent protests as seemingly non-violent protests.”

Senior Advocate Salman Khurshid who appeared on behalf of the Petitioner submitted that the investigating agency had “misapplied and wrongly invoked” UAPA and that there was neither any allegation that the Petitioner had indulged in any terrorist act nor was there any material that remotely showed that the Petitioner had funded any terror activities.

It was also submitted that there was no material to show that there was no requisite intention on behalf of the Petitioner and the case of the investigating agency was that the SIM card was provided by the Petitioner on allurement of money, but not for any other objective. Further, it was argued that he was a poor salesman surviving on meagre salary and that invoking UAPA is a gross abuse by the investigating agencies depriving him of his personal liberty.

After considering the material available on record, the Single Bench noted that it was nobody's case that Faizan Khan was part of any WhatsApp group which coordinated or organized protests against the Citizenship Amendment Act, 2019. There was also no allegation that he engaged in any form of terror funding or such other ancillary activity, according to the court.

Further observing that the SIM card was taken in December 2019 whereas the violence had erupted in February 2020, the Court said, “There is no proximate nexus between the aforesaid alleged incidents nor is it alleged that the said SIM card was provided, on the pretext or with the intention/objective, to be utilized for organizing protests, etc.”

The court finally opined that the investigating agency ought to have known that Faizan Khan had “actual knowledge” that the said SIM card would be used for organizing the protests. There is no CCTV footage, video or chats of the petitioner that points towards his guilt and the court also observed that he has voluntarily appeared before the agency for questioning and did not flee between the periods of registration of the FIR i.e. March 6, 2019 and the date of his arrest that is July 29, 2020.

After clashes had broken out in February, 2020 in parts of north east Delhi, the Police has named approximately 15 people in 17,500 pages long chargsheet.

The order can be read here:

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