On July 26, Additional Principal Judge, DD Thakkar of the City Civil court postponed the order in the matter of bail for journalist, educationist and human rights defender Teesta Setalvad to July 28. The order in the bail application of former Gujarat Director General of Police (DGP) RB Sreekumar is also likely to be passed on July 28. The court said that as there were many documents to examine, the order will be passed on Thursday.

The shocking arrest

On June 24, 2022, the Supreme Court dismissed a Special Leave Petition (PIL) moved by Zakia Jafri seeking a proper investigation into the wider conspiracy behind the 2002 Gujarat carnage.

The petition had been moved by Zakia Jafri, the widow of slain Congress Member of Parliament (MP) Ehsan Jafri, who had been killed during the communal violence in Gulberg Society. Citizens for Justice and Peace (CJP) secretary Teesta Setalvad was the second petitioner in the case that aimed to pin the responsibility of allowing the violence to continue unabated on the people in power in Gujarat at the time.

But deeming this to be a malicious prosecution, the court had observed in its judgment, “As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

The very next day on June 25, 2022, a team of the Gujarat Anti Terrorism Squad (ATS) barged into Teesta Setalvad’s Mumbai home and detained her.

The above extract was quoted in a complaint filed on behalf of the State, and today, Teesta Setalvad, a fearless human rights defender stands accused of criminal conspiracy, forgery and giving or fabricating false evidence among other IPC sections. Two former police officers, who were whistle-blowers in the case, RB Sreekumar and Sanjiv Bhatt have also been named as her co-conspirators in the FIR. While Bhatt is already in jail under trumped-up charges in a custodial death case, Sreekumar was arrested shortly after Setalvad was picked up.

Abuse of power during detention

Setalvad says she was roughed up as she was picked up from her Mumbai home and taken to the Santacruz police station. At about 5:30 P.M, just before being whisked away to Ahmedabad, Setalvad filed a hand written complaint with the Santacruz Police Station saying Police Inspector JH Patel of the ATS Ahmedabad and a lady officer in civil clothes came into her bedroom and assaulted her when she demanded to speak to her lawyer. Setalvad says that she was not shown the First Information Report (FIR) or a warrant till her lawyer arrived.

In her complaint, Setalvad has also stated that the assault left her with a bruise on her left hand, and that she feared for her life.

In Ahmedabad, Setalvad was formally arrested, and taken for a mandatory medical test on Sunday June 26.

Proceedings during the July 18 hearing

Setalvad and RB Sreekumar’s lawyers tore into the Crime Branch’s affidavit and showcased how none of the ‘offences’ alleged in the pertinent matter are maintainable as none of the courts in which the said matter were being heard had made any complaint whatsoever.

They further argued that instead of substantiating their case with adequate evidence, the State has gone into a totally irrelevant ‘broader conspiracy’ which has no immediate relevance to this case. Hence, while any maintainable evidence is non-existent, which would be established during the trial, not granting bail in this matter would be a travesty of justice.

After this the State represented by the Public Prosecutor made their submissions on July 20 and 26. It is also noteworthy that during this entire ordeal, the State also made a series of fresh and bizarre allegations against Setalvad claiming she took money from the now deceased Congress leader Ahmed Patel to defame the Gujarat government in 2002.

Proceedings on July 26, 2022

During the proceedings today, the Public Prosecutor continued to harp on Setalvad’s “conduct”. The PP’s argument was that given this “conduct”, enlarging Setalvad on bail would result in interference in the investigation and efforts to influence the witnesses! The most outlandish submission of all, was the multiple litigations she has moved, even in cases where she was not even a party. The PP submitted that these multiple litigations and appeals were designed by her to escape the consequences of the various investigations that she was under. He cited an instance of Setalvad challenging the order of the magistrate court for investigation under sec 153 A. This petition was dismissed by the High Court. The PP also continued to make submissions about the “larger conspiracy”, where he attributed Setalvad’s actions to her desire to become a Rajya Sabha Member of Parliament – another allegation, devoid of any basis in reality.

Setalvad’s lawyer, Advocate Somnath Vats, once again exposed the lack of substance in the prosecution submissions, and expounded how the IPC sections 190-19 and 211, that deal with fabricating evidence and presenting false evidence during the pendency of a case, that could lead to serious harm to the parties involved in the case. His submission was that the Zakia Jafri petition was complete with the Supreme Court upholding the closure of the case by the SIT; and there was no active case in which Teesta Setalvad et al could have presented false and fabricated evidence. The FIR of the impugned case was a totally separate one, and had nothing to do with the Zakia Jafri petition. Hence there was no question of using Sec 195 in this matter.

The defence submitted that all this while, Setalvad has been engaged in various cases. Yet, nowhere has the State ever stated that she had interfered with any investigation! Taking legal recourse cannot be portrayed as something that can derail investigation.

On the subject of intimidating the Investigating Officer (IO), Setalvad’s team submitted that if any IO feels that the accused is tampering evidence or interfering with the investigation or influencing/threatening/intimidating witnesses while on bail, the IO has adequate powers backed by legal provisions to file a complaint against such accused persons.

Advocate Somnath also tore into the “larger conspiracy” saying that the prosecution has not established any prima facie case. Even when the PP alleges ulterior motives to destabilize the government, there is no evidence that has been presented except the undisclosed mysterious statements of three un-named (confidential) witnesses, to which the defence is not yet privy.

The order is now expected to be delivered on July 28.

Related:

Arguments to continue in Teesta Setalvad’s bail application on July 20

Free Teesta Setalvad: Peers and fellow activists offer a testament to her tenacity

Human Rights defenders stand with Teesta Setalvad

Indian intelligentsia bats for Teesta Setalvad

Free Teesta Setalvad: A week in the life of a brave human rights defender

The post Order in Teesta Setalvad and RB Sreekumar’s bail applications likely to be passed on July 28 appeared first on SabrangIndia.

After deferring his bail order thrice, the Karkardooma Court in New Delhi, finally announced its decision regarding bail for Dr. Umar Khalid, an activist and human rights defender who has been hounded by the regime for years. On March 24, 2022, Dr Khalid was denied bail in connection with the case surrounding the alleged wider conspiracy behind the communal violence that broke out in East Delhi in February 2020. But a closer look at the manner in which proceedings against Dr. Khalid transpired, and the bail order itself, reveal shades of institutional violence and a mockery of the justice system.

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. Many have fallen victim to this draconian statute which is being regularly abused often to incarcerate politically inconvenient voices, more specially so by the executive in the past 7 years. While Dr. Khalid was granted bail in the matterconcerning Penal Code and Arms Act charges. However, 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 wasDr. 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 the 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). What is concerning is that under the 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. In this case 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,

(c) Dr. Khalid was not even present in Delhi when the riots took place.

Grounds for denying bail as stated by the Court

• Dr.Umar Khalid finds a recurring “mention” from the beginning of the conspiracy till the riots.
• He is member of the Whatsapp groups of Muslim students of Jawaharlal Nehru University (JNU).
• He participated in various meetingsin December 2019 (on December 7, 8, 13 and 26) and also in January 2020 (January 8, 23-24) as well as on February 2, 2020.
• He is member of the DPSG Whatsappgroup and attended meeting at Indian Social Institute (ISI) on December 26, 2019
• He gave reference to Mr. Donald Trump President of USA in his Amravati Speech on February 17, 2020
• He was mentioned in the flurry of calls that happened post riots.
• He was instrumental in creation of the Jamia Coordination Committee (JCC).
• Statements of numerous witnesses including protected public witnesses highlighting the incriminating material against the accused Umar Khalid.

Since the membership of certain Whatsapp groups and participation in various meetings was not enough, the Court only relied on vague, contradictory and implausible witness statements without undertaking any further analysis despite acknowledging the fact that there are some inconsistencies in the statements of some protected witness.

As pointed out by Dr. Khalid’s counsel, the court admitted that even though Dr. Khalid was part of the Whatsapp group (MSJ & DPSG), he has not written any messages in those groups and they are not overtly provocative or incriminatory. The court stated, “At this stage of bail, the statements of all the witnesses have to be taken at face value and their veracity will be tested at the time of cross examination.” Therefore, without engaging in any attempt to determine the veracity of these witness statements, the court made out a prima facie case by drawing together his membership with the Whatsapp groups and his connectivity with other co-accused. The court stated, “The fact that he was part of such groups created for specific objects and his acts or presence throughout the period beginning from the passing of the CAB Bill in December 2019 till February 2020 riots, has to be read in totality and not piecemeal.”

Here are some of the vague witness statements relied upon:

Para 12.3: Umar Khalid came to the protests site (Seelampur) and gave provocative speeches.

(However, the witness does not shed any light on what these statements were, to better explain how they were provocative.)

Para12.4: Umar Khalid also came at the protest site and gave speeches against the government.

(Here again, the witness does not mention what these statements were.)

Para 12.5: Umar Khalid was present at Shaheen Bagh on 08.01.2020

(Does not give any other detail aboutDr. Khalid’s actions.)

Para 12.5: Umar Khalid and his father S.Q lllyas said to the witness that he comes from Jahangir Puri where there are a lot of Bangladeshis and asked them to educate them and fight against CAA/NRC.

(No co-relation of incitement to violence can be drawn from this statement.)

Para 12.6: Witness states that he saw a video wherein Umar Khalid gave a speech in Amravati, Maharashtra stating that Trump is coming to India and they have to show their powers by coming on to the roads.

(There is no material indicating an inflammatory speech made by Dr. Khalid. On the contrary, in his speech in Amravati, he has been quoted saying, “We will not answer violence with violence, anger with anger, if they spread hatred we will reply with love, if they use batons, we will fly the tricolor, if they fire bullets, we will hold aloft the Constitution, if they put us in jail, we will sing ‘Sarejahan se acha Hindustan hamara’ and gladly head to prison – but we will not let you destroy this country.”)

The fate of a young scholar and activist who only dared to express dissent against the Citizen Amendment Bill is now being influenced by the vague statements made by the so-called Romeo, Juliet, Bond, Bravo, Saturn, Smith, Echo, Sierra, Helium, Crypton, Beeta, Delta, Gama, Yankee, and Robert.

It is disturbing that the reliability of the witness statements, based on which the bail has been denied, has been left for the stage of trial, thereby leaving a person languishing behind bars for years together, who may not even be guilty, merely based on “he said-she said”.

Dr. Khalid’s counsel Senior Advocate TrideepPais,has previously brought to the court’s attention the contradictory statements of witnesses presented in the case and even claimed them to be “cooked-up” witnesses”. In addition to that The Wire had reported on witness coercion to frame Dr. Khalid in the riots case, wherein the police interrogators drew up a prepared statement about Khalid’s supposedly proposing a “chakka jaam in Delhi” at the “opportune moment” and asked the young man to sign it. When the person argued that he had no knowledge of these and other claims, he was threatened with himself being implicated in the violence and arrested under the Unlawful Activities (Prevention) Act – India’s draconian anti-terror law. Therefore, the young man reluctantly agreed to sign the police statement. It was reported that a senior officer had added another line about Khalid promising to raise funds and the acquaintance was made to read the full “statement” in front of a video camera “in a natural way”.

Special treatment for the leaders of the ruling party

Concerning Dr. Khalid’s absence in Delhi during the riots, the Court states that in a case of conspiracy, it is not necessary that every accused should be present at the spot. It is important here to compare this with the case of BJP Leader and Supreme Court, Ashwini Upadhyay, Organizer of Jantar Mantar event, Preet Singh and Hindu Raksha Dal President, BhupenderTomar (aka Pinky Chaudhary), who were released on bail within a day, a week and two months, respectively, after being arrested under IPC section 153A (promoting enmity between different groups on grounds of religion, race, etc) in connection with raising of anti-Muslim threats in the forms of slogans during a demonstration. Chaudhary and the other accused Deepak Singh, Preet Singh and Vinod Sharma had allegedly called for the slaughter of Muslims on August 8, 2021, as part of a rally organised by Supreme Court lawyer Ashwini Upadhyay under the “Bharat Jodo Movement” against colonial-era laws in the country. In an area that is supposedly a high security zone, just a few kilometres from the Parliament, slogans like “Jab M***e Kate Jaenge, Ram RamChillaayenge” were chanted that have been recorded and widely circulated online.

While granting bail to co-accused Preet Singh, the Delhi High Court had noted that he left the spot at around 2:00 P.M whereas the inflammatory slogans were raised at around 4:00 P.M on the location, and that he was no longer required for custodial interrogation.Based on these observations, the court observed that Chaudhary left the spot of meeting at 1:29 P.M and is also not required for interrogation and hence, on grounds of parity with Preet Singh, Chaudhary be granted bail.

Moreover, no action has been taken against BJP leader, Kapil Mishra for his hate speech against Muslims, delivered a day before the same Delhi riots broke out during the anti-CAA protests.

Recently, in a case related to alleged hate speeches connected to the Northeast Delhi riots made by Union Minister Anurag Thakur and MP Parvesh Verma, the Delhi High Court said, “Was that an election speech or speech in ordinary time? If any speech is given during election, then it’s a different thing. If you’re giving a speech in the ordinary course, then it is instigating something,” adding, “If you’re saying something with a smile then there is no criminality, if you’re saying something offensively, then criminality.”

The manner in which the Indian judiciary is undertaking a selective reading of law is frightening. 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.

Here is a listicle that demonstrates how the Indian judiciary applies different strokes to different folks.

Related:

Sketchy material against Umar Khalid, Delhi court grants bail
Protest was secular, chargesheet is communal: Dr. Umar Khalid’s counsel
Umar Khalid bail hearing: Counsel points out “cooked up” witnesses
Chargesheet against me looks like a film script: Umar Khalid to court

The post Dr. Umar Khalid: A human rights defender, failed by the judiciary appeared first on SabrangIndia.