Introduction
On May 28, Shahdara Sessions Court judge Sameer Bajpai rejected the bail application of Umar Khalid in the Delhi riots conspiracy case. The judge observed that Kahlid’s bail plea was earlier rejected by the Sessions Court and his appeal against the order was further dismissed by the Delhi High Court as the latter found the case against the accused prima facie true. Notably, Umar Khalid had filed second bail plea with the Sessions Court after he withdrew his bail application from the Supreme Court citing “change in circumstances” to try his “luck” in trial court. Pertinent, before Khalid withdrew his bail petition from the SC, the case had already witnessed 14 adjournments. Earlier, the Session Court had rejected his first bail application on March 24, 2022, following which he moved to the Delhi High Court, which again rejected his appeal on October 18, 2022.
As the Sessions Court rejects his latest bail petition on 28 May, Khalid continues to remain in jail for more than three and half years now even as some of the co-accused in the case have secured bail, including Natasha Narwal, Devangana Kalita, and Asif Iqbal. Khalid’s counsel pointed out this fact and argued that his client should be granted bail on parity, but the court rejected his arguments. Justice Sameer Bajpai of the Sessions Court reemphasised the previous orders of the Sessions Court and the Delhi High Court rejecting Khalid’s bail petitions.
Notably, Umar Khalid has been booked in this case under plethora of charges including Section 120B (criminal conspiracy) read with Sections 124A (sedition), 302 (murder), 207 (fraudulent claim to property), 353 (criminal force to deter public servant), 186 (obstructing public servant), 212 (harbouring offender), 395 (dacoity), 427 (mischief causing damage), 436 (mischief by explosive substance to destroy house), 454 (house-breaking), 109 (abetment), 114 (presence of abettor when offence is committed), 147 (rioting), 148 (rioting armed with deadly weapon), 149 (unlawful assembly with common object), 153A (promoting enmity), 34 (common intention) of the Indian Penal Code (IPC) and Sections 3 and 4 of the Prevention of Damage to Public Property Act, Sections 25/27 of Arms Act, and Sections 13 (unlawful activities), 16 (terrorist act) , 17 (raising funds for terrorist act) and 18 (conspiracy) of the Unlawful Activities (Prevention) Act (UAPA).
Umar Khalid was first arrested in the present case on the basis of the FIR filed in connection with the northeast Delhi violence following the wide-spread anti-CAA protests against the ruling BJP. Pertinently, it took 6 months for the police following the registration of the FIR to finally arrest Khalid on September 13, 2020.
Analysis of the judgement
In the present case, Khalid’s counsel argued that the chargesheet and the supporting material provided by the prosecution does not justify the offences under UAPA and there is no evidence to show that his client has committed the alleged offences. His lawyer further argued that the alleged acts do not fall within the definition of “terrorist act” under Section 15 of the UAPA, and similarly, no offences under Section 16 and 18 of the UAPA Act are borne out from the facts. He further argued that Khalid is neither a member of any banned organisation nor is it prosecution’s case that Khalid was involved in any terror financing, and consequently, Section 17 of UAPA would be inapplicable. In addition, Khalid’s advocate said that no witness statements suggest Khalid’s involvement in the alleged activities, and given the fact that when other co-accused were granted bail in the case, who allegedly had more “direct role” compared to Khalid, why Khalid should not be granted a bail on parity.
Significantly, Khalid strongly relied on Vernon vs. State of Maharashtra (Criminal Appeal no. 639 of 2023), in which the Supreme Court had ruled that prima-facie “test” would require “…at least surface analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the court of its worth.” Furthermore, he also cited Sudesh Kedia vs. Union of India (Criminal Appeal Nos. 314-315 of 2021), Union of India vs. K.A. Najeeb (Criminal Appeal No. 98 of 2021), State of Haryana Vs. Basti Ram (Criminal Appeal No. 352 of 2006), State of Andhra Pradesh, through Inspector General, National Investigation Agency vs. Mohd. Hussain (CRL. M.P. Nos. 17570 and 17571/2013), Shaheen Welfare Association vs Union of India ((1996) 2 SCC 616), and Angelia Harish Sontakke vs. State of Maharashtra (SPL (Crl.) No. 6888/2015).
The prosecution argued that though Khalid had cited “change in circumstances” to apply for a second bail application at this court, “…the said “change in circumstances” in real terms were neither stated before the Hon’ble Supreme Court nor specially pleaded in the present bail application…” The State further claimed that bail cannot be granted merely on the basis of parity with other co-accused or due to delay in the trial, considering the gravity of offences. It also said that the Sessions Court is “bound” by the judgement of the Delhi High Court rejecting the bail plea of the accused on October 18, 2022, which should be considered “final” and “binding”. The prosecution emphasised on the ratio in the case of Gurvinder Singh vs. State of Punjab (Criminal Appeal No.704 of 2024), in which the Supreme Court had ruled that the exercise of the general power to grant bail under UAPA Act is severely restrictive and the bail in such cases is the exception and jail is the rule. Furthermore, the same judgement also said that mere delay in trial cannot be a ground for bail in serious offences like UAPA.
The judgement written by Justice Sameer Bajpai reasoned that “changes in circumstances” as cited by Khalid may be related two developments, viz., (1) delay in the proceedings and (2) new development in the law or judicial precedent. On the issue of delay in trail, the judge notes that there is no delay from the prosecution’s side in “framing of charge and commencement of the trial” but “…in fact, it is the accused persons who have moved separate applications…Thus, when the delay…is on the part of the accused persons, the applicant cannot take benefit of the same.”
On the second issue regarding development in jurisprudence on the matter of bail under UAPA, the court acknowledged that Vernon judgement was indeed delivered after the Delhi High Court verdict, and therefore needs to consider afresh into this case. Interestingly, while the Vernon judgement was cited by Khalid for securing his bail as a liberal judgement, the court effectively used the same judgement to counter his argument. Justice Sameer said that “according to the Vernon’s case as relied upon by ld. counsel for the applicant, while considering bail, no ‘deep analysis’ of the facts of a case can be done and only ‘surface analysis’ of the probative value of evidence has to be done and as such the Hon’ble High Court has in fact did complete surface analysis of probative value of the evidence while considering the prayer of the applicant for grant of bail and after doing so it was concluded that prima-facie case is made out against the applicant.”
Importantly, the Sessions Court seems to have addressed Vernon judgement only because it was relied upon by Khalid for securing his bail, but effectively, the court has considered Vernon judgment not be a good precedent. Instead, the Session Court has heavily relied on the recent judgement of the apex court in the case of Union of India vs. Barakathullah (SLP (Crl.) Nos.14036-14040/2023), in which the bench of Justices Bela Trivedi and Pankaj Mithal reaffirmed the law “as laid down in National Investigation Agency vs. Zahoor Ahmad Shah Watali and Gurvinder Singh vs. State of Punjab & Anr. and opined that the court at the stage of considering the bail application of the accused is merely required to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the alleged offence.”, Justice Bajpai noted in his verdict.
The verdict concluded that “there are no change in circumstances only due to the fact that the words ‘surface analysis’ have been added in it” and the “order of this Court as passed on 24.03.2022 has attained finality and now, in no stretch of imagination this court can make analysis of the facts of the case as desired by the applicant and consider the relief as prayed by him.”
As the Sessions Court rejected Khalid’s bail application for the second time, it noted that the verdict does not express opinion on the merits of the case.
The copy of the judgement can be found here:
Related:
The worst from Indian courts: 2022 | CJP
UAPA: Delhi HC denies bail, Umar Khalid’s Incarceration to Continue | CJP