Membership of Whatsapp groups can’t make one criminally liable, argues Dr. Umar Khalid

Umar Khalid

On July 28, 2022, Senior Advocate Trideep Pais appearing for Dr. Umar Khalid continued to make his submissions with respect to the bail plea filed by him, challenging the order passed by the Trial Court denying him bail in connection with the case involving charges under the Unlawful Activities (Prevention) Act (UAPA), in the larger conspiracy case about the February 2020 Delhi violence.

Before the Court vacation, the Delhi High Court bench comprising Justice Siddharth Mridul and Justice Rajnish Bhatnagar had heard the submissions by Dr. Umar Khalid over the span of four to five days and concluded his arguments on Thursday. The Court has posted the matter for hearing on August 1 when Special Public Prosecutor Amit Prasad shall be granted an opportunity to make his submission on behalf of the State.

Senior Advocate Pais submitted that mere membership of Whatsapp groups, as alleged by the prosecution, cannot make Khalid criminally liable when nothing objectionable was attributed to him, reported LiveLaw. He reportedly argued, “The fact that I was part of two WhatsApp groups, out of five cited against me in which I remained silent, cannot make me criminally liable. I am not saying there was anything criminal in those groups. I am not an administrator, I am merely member of the group. Admins are someone else. Nothing else objectionable is attributed to me. If someone else has said something, that can’t be put at my door.” With respect to the three out of five groups where Khalid was not a silent member, Pais submitted that only four messages were sent in the entirety of Whatsapp chats attributed against him in which there was neither any incitement nor call for violence.

To support his argument, Pais relied on the Madras High Court judgement in the case of R Rajendran v. Inspector of Police, where the Court held that a group administrator has limited power of removing a member of the group or adding other members of the groups and that once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members to the group, reported LiveLaw.

Pais denied any violence being attributed to any speech made by Khalid. He submitted that there wasn’t any recovery of any connection of his speech with violence and referred to the witness statements recorded by the prosecution, which according to him was hearsay and most importantly, recorded much after the events in proximity to his arrest. He reportedly argued, “If at all there is evidence which claims there was any kind of advocacy or incitement on my part, I don’t even concede to that, that is only in form of belated statements.”

Previously, speaking about Khalid’s speech, Justice Mridul had orally remarked, “The speech is in bad taste, does not make it a terrorist act. We understand that extremely well. If the case of the prosecution is premised on how offensive the speech was, that by itself won’t constitute an offence. We will give them (prosecution) the opportunity…… Offensive and distasteful it was. It may tantamount to defamation, other offences, but it does not tantamount to a terrorist activity.”

Before that, the Court had stated that the speech read out by Khalid’s counsel was obnoxious, inciteful and not acceptable.

Background

Dr. Khalid was arrested by the Delhi Police in September 2020, under the Unlawful Activities (Prevention) Act (UAPA), on the charge of larger conspiracy to allegedly unleash violence to defame the Indian government during a visit by former US President Donald Trump. While Dr. Khalid was granted bail in the matter concerning Penal Code and Arms Act charges, he continues to remain in custody in connection with the Delhi Riots larger ‘conspiracy case’ concerning UAPA charges under FIR No. 59 of 2020.

While granting bail concerning the IPC & Arms Act charges, the Additional Sessions Judge Vinod Yadav recognised that probability of a lengthy trial in the said matter. The court observed, “The applicant cannot be made to incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob have to be identified and arrested in the matter.” It came down heavily on the State for providing inadequate evidence in this case, that is based on the statement provided by a prosecution witness. The court found the statement provided by the witness to be insignificant material and couldn’t comprehend how a lofty claim of conspiracy could be inferred based on it.

Importantly, the court noted that the material against Khalid was “sketchy” and that he cannot be incarcerated indefinitely on the basis of such evidence. “The applicant cannot be permitted to remain behind bars in this case on the basis of such sketchy material against him,” read the order. The judge also held that neither was Dr. Khalid present at the crime scene on the day when communal clashes broke out last year, nor was he captured in any CCTV footage/viral video. Further, the court also said that “…neither any independent witness nor any police witness has identified the applicant to be present at the scene of crime. Prima facie, the applicant appears to have been roped in the matter merely on the basis of his own disclosure statement and disclosure statement of co-accused Tahir Hussain.”

Under UAPA, Dr. Khalid has been charged under sections 13 (Punishment for unlawful activities), 16 (Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act) and 18 (Punishment for conspiracy). Under UAPA, an accused person shall not be released on bail if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. The Delhi court made out a prima facie case merely on the basis of implausible, contradictory and vague statements made by the witnesses and gave no regards whatsoever to the fact that:

(a) Dr. Khalid had not given any public calls to incite violence;

(b) There is no evidence on record that proves Dr. Khalid’s participation in funding or transporting arms nor were they recovered from him,