Speech in bad taste, not a terrorist act: Delhi HC On Umar Khalid’s Amravati Speech

Umar Khalid
Image Courtesy:english.madhyamam.com

On May 30, 2022, Advocate Trideep Pais appearing for 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 UAPA charges alleging larger conspiracy in the Delhi riots that took place in 2020.

A division bench comprising Justice Siddharth Mridul and Justice Rajnish Bhatnagar heard the submissions by Umar Khalid over the span of four to five days. Pais will most likely conclude his arguments after vacation pursuant to which an opportunity shall be granted to the prosecution to make its submission.

According to LiveLaw, Justice Mridul 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.”

Earlier, while issuing notice on the appeal filed by Khalid, the Court had stated that the speech read out by Khalid’s counsel was obnoxious, inciteful and not acceptable.

On Monday, Pais argued at the outset that the grounds on which the Special judge had denied bail to Khalid was wrong. He reportedly argued, “Does the court jump to the conclusion that it was a conspitorial meeting just because the chargesheet says so?….Does the court not even have to look at the broad probabilities and see how…nothing is disclosed. The impugned order reproduces the chargesheet allegations.”

Pais extensively discussed the witness statements with the help of Advocate Sanya Kumar mainly focussing upon the Seelampur meeting which is alleged to be a secret meeting by the prosecution.

Kumar submitted that in the opinion of the protected witnesses the meeting was not secret and that co-accused Natasha Narwal was not present at Seelampur on the relevant date as proved by the call detail records. Kumar also drew a similarity in the language in the statements made by the protected witness Siera and Smith displaying the identical words used by them.

With respect to the vague statement made by protected witness Echo, Kumar reportedly submitted, “Echo says “public ko bhadkaya”. But he doesn’t mention, what were the words used, what was said…..The Prosecution also doesn’t make out a case that the speech given by Umar Khalid in Seelampur was provocative.” Kumar also highlights that there is no record of the Seelampur meeting in Echo’s statement recorded under Section 161 CrPC as it does in his statement recorded under Section 164 CrPC.

Then, Pais made an interesting point debunking the prosecution’s allegations of a secret meeting in Seelampur, as he referred to a photograph of Khalid and other persons including co-accused and questioned, “There is a picture, after that there is another. This is a prosecution document and a conspitorial meeting. Would anyone who wanted to execute a conspiracy, take a selfie and put it on Facebook?”

The matter is listed to be heard on July 4, 2022.

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,

While Dr. Umar Khalid languishes behind bars and is vilified as a ‘Jihadi’ for responding to hate with love, there are hate offenders out there who are let off with a mild rap on the wrist.