Dr. Umar Khalid’s bail hearing in the Delhi violence conspiracy case continued today as his counsel, Senior Advocate Trideep Pais, brought to the court’s attention the contradictory statements of witnesses presented in the case.

Pais, at the previous hearing on November 3 had made an impactful submission saying, “Protest was secular, chargesheet is communal”, referring to the anti-Citizenship Amendment Act (CAA) protests and Khalid’s role in them.

Pais continued his argument about Khalid being a part of a Whatsapp group where he barely sent four messages which were of no actionable consequence. “I’m an outsider virtually to the group and I’m in custody. He (witness) is unable to point out a specific activity that I undertook by virtue of which it can be said that I did an illegal act, terrorist act,” he submitted on behalf of Dr. Khalid.

He further pointed out that the chargesheet states that Khalid had a secret meeting on January 23 and 24, 2020 at Seelampur protest site. He pointed out that the meeting with other co-accused Tasleem and Gulfisha Fatima was posted on Facebook and a picture was also posted. He then wondered aloud how such a meeting could be considered a secret? 

One witness was the person serving tea at this meeting. Pais argued that this witness heard everything about the conspiracy but waited until the violence was over, and also waited for police to approach him before he made his statement. Therefore, Pais deemed this to be a “cooked up statement”. Pais also stated that the police failed to get a statement of the tea-seller under section 164 of CrPC and hence they got another witness to record the statement. However this witness claims to be a protester and does not state that the meeting was secret. He also pointed out that this witness statement was recorded just prior to Khalid’s arrest.

Pais requested the court that he would complete his arguments in an hour post lunch time. While the court was adjourned for after lunch time, the hearing was further adjourned to November 16.

At the previous hearing on November 3, Pais had argued that Chakka Jam is not an offence and that it’s used by students and also done in various agitations.

In September, Khalid, who has been booked under the anti-terror law, completed a year in prison. He has been accused of sections 13 (Punishment for unlawful activities), 16 (Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act) and 18 (Punishment for conspiracy) of the Unlawful Activities (Prevention) Act, 1967.

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Additional Sessions Judge Amitabh Rawat continued to hear the bail application filed by former Congress councillor and lawyer Ishrat Jahan, who has been accused in last year’s conspiracy case of North East Delhi violence. The next date for the hearing is now August 2, 2021, where the Special Public Prosecutor Amit Prasad will start his arguments, opposing Jahan’s bail plea.

Pradeep Teotia, senior counsel appearing for Ishrat Jahan, argued that there is no evidence against her in the conspiracy case to be booked under the stringent Unlawful Activities (Prevention) Act, 1967. Jahan 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) of the UAPA. He argued that Ishrat has been falsely implicated and is not a hardliner, as projected by the Delhi Police.

Teotia further argued, “I (Ishrat Jahan) was victorious counsellor from a ward where Muslims were are in a minority. She was the only woman to win. She was victorious because of her secular image. I have participated in both Hindu and Sikh processions. They have projected me as a hardliner, but I have been popular in all events, there is no connection with the conspiracy.”

He added, “She was a popular lady, there is not a single iota of evidence to suggest that she was attached to this conspiracy. The prosecution and the investigation agency have no evidence that can qualify to put her behind bars under UAPA. There is no bar on bail for Ishrat.” He also referred to the time last year, when Ishrat was granted interim bail for her wedding between June 10 to June 19, to contend that she did not attempt to influence any witness.

He then referred to Jahan’s financial transactions in 2019 and told the court that her “pattern of financial withdrawal and deposit has not changed”, and that the police does not have any qualitative evidence against her. He informed the court that the Police had failed to show any evidence in totality. “The evidence is piecemeal and not in totality. If shown properly, it will be proved that I am not guilty”, he said while concluding his arguments.

Ishrat was initially arrested on February 26, 2020, on charges of inciting violence, rioting and attempt to murder under the Indian Penal Code. After spending a month in judicial custody, Ishrat along with four others were granted bail by Additional Sessions Judge Manjusha Wadhwa on March 21, 2020. The court had noted that the role assigned to Ishrat is that she incited the crowd to remain present at the protest spot as well as raised slogans of freedom, however, no overt act had been imputed to her regarding taking law into her own hands. 

On the same day, she was re-arrested under UAPA charges and has remained in jail since then. For a brief period of 10 days, she was released on interim bail on account of her wedding in June last year. Ishrat had moved for interim bail in November, which was rejected by the Delhi Sessions Court.

Over the past few months, bail applications to several of those young leaders accused of a ‘conspiracy’ behind the Delhi 2020 violence have been heard. While in 2020 most cases were rejected by lower courts, on June 15, 2021 three such activists, Asif Iqbal Tabha, Devangana Kalita and Natasha Narwal were granted bail by a division bench of the Delhi high court. In landmark verdicts the Court held that the offences, if at all made out did not fall under the ambit of “terrorist act” as defined under the UAPA. An analysis of the Delhi High Court verdict may be read here and here.

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Securing bail under Unlawful Activities (Prevention) Act, 1967 is an anomaly but not on June 15, when the Delhi High Court granted bail to student activist Asif Iqbal Tanha and Jawaharlal Nehru University (JNU) students Natasha and Devangana in the North East Delhi Violence case.

All three have been implicated in FIR No. 59 of 2020, under charges of conspiracy to incite violence and block roads (chakka jam) to protest against the citizenship laws and adversely impact the supply of goods into the National Capital.

What is this conspiracy case?

In Case FIR number 59 of 2020 registered on March 6 2020, the Delhi Police had claimed that both Devangana and Natasha, who are members of women’s rights organisation called Pinjra Tod (break-free from the cage, namely from societal shackles) and as part of the WhatsApp groups under the name Warriors, Auraton ka Inquilab, Delhi Protest Support Group, and Jamia Coordination Committee (JCC), engaged in a conspiracy to plan the riots and destabilise the government in the guise of anti-CAA and anti-NRC protests.

They were also allegedly responsible for escalating their chakkajam agitation (which may loosely be translated as a form of protest in which protesters block roads); and indulged in distributing packets of chilli-powder to women protesters, with the purpose of attacking the police and military with it.

For Asif, the State alleged that the chakkajam planned was with a “difference” and the intention was “to stop milk and water” and was to be done not only in Delhi but in “every place where it was possible for Muslims” to organise it. It was intended to “cause riots and fear”.

Further, the State contended that Asif was associated with JCC, which aligns with that of Muslim Students of JNU and is in place to “debunk the secular values of the Constitution and to aggravate differences between the communities so as to cause social disharmony and bring out a feeling of disunity.” Asif was also accused of handing over a SIM card given to him by someone else, to a co-conspirator which, it is further alleged, was used by the said co-conspirator to send messages on a WhatsApp group.

Delhi HC’s observations on Right to Protest

Since these cases stemmed from the issue of protests, the High Court tried to examine the contours of legitimate protests that do not threaten the nation. In all three judgments granting bail to the accused, the Delhi High Court Bench of Justices Siddharth Mridul and Anup Jairam Bhambhani referred to the top court’s decision in Mazdoor Kisan Shakti Sangathan.

This Supreme Court’s decision has already said that legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong, because people have the right to express their views. A demonstration that turns noisy, disorderly and even violent, would not fall within the permissible limits of Articles 19(1)(a) or 19(1)(b) and in such cases the Government has the power to regulate, including prohibit, such protest or demonstration.

The court had also ruled that the Government can prohibit public meetings, demonstrations or protests on streets or highways to avoid nuisance or disturbance of traffic but cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Articles 19(1) (a) and 19(1)(b) of the Constitution.

Taking the protests carried down by the three accused in this context, the Delhi High Court held that there was nothing to show that the Government had prohibited the protest at the relevant time, much less is there anything to show that they were perpetrators or conspirators involved in any illegal protest.

“There is absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation, that would show the possible commission of a ‘terrorist act’ within the meaning of section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of section 18 UAPA. Accordingly, prima-facie we are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found any of the offences defined under section 15, 17 or 18 UAPA”, read all three judgments.

General Bail Principles

While granting bail, the High Court said that it must keep in mind not only the nature of accusations but also the severity of the punishment and the nature of evidence in support of the accusations. Additionally, the court must also reasonably assess the apprehension of flight risk, evidence tampering and witness intimidation, with careful regard to the “genuineness of the prosecution.”

The court must also consider the character, behaviour, means, position and standing of the accused and the likelihood of the offence being repeated. “We remind ourselves that the object of bail is neither punitive nor preventative but is principally to secure the presence of the accused at the trial; and that punishment begins only after conviction and that everyone is deemed to be innocent until duly tried and found guilty,” said the Bench.

The court also referred to the profound insight of Justice V.R. Krishna Iyer, J., when he said that the consequences of pre-trial detention are grave and that by being kept in custody, an undertrial accused, though presumed innocent, is subjected to:

• psychological and physical deprivations of jail life;
• prevented from contributing to the preparation of the defence;
• and that the burden of pre-trial detention frequently falls heavily on the innocent members of the family.

Key Ruling

The High Court perused the subject charge-sheet and the material included in it, and held that prima-facie the allegations made against Natasha, Devangana and Asif are not even borne-out from the material on which they are based.

In Devangana Kalita’s bail judgment (Crl. App. No. 90/2021), the Bench said, “In our opinion, shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under sections 15, 17 and/or 18 of the UAPA…. protests against Governmental and Parliamentary actions are legitimate; and though such protests are expected to be peaceful and non-violent, it is not uncommon for protesters to push the limits permissible in law. The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions.”

In Natasha Narwal’s bail order (Crl. App. No. 82/2021), the court remarked, “We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy.”

In Asif’s case, the High Court said that handing over a SIM card given to him by someone else, to a co-conspirator, which, it is further alleged, was used by the said co-conspirator to send messages on a WhatsApp group, was not enough to keep him incarcerated. “in our view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made,” held the court.

The judgment also reflects the poor case of the government that kept the three accused confined in a jail without substantial reasons, amid a ravaging pandemic, away from their loved ones. The court found the subject chargesheet filed against them to have “complete lack of specific, particularised, factual allegations”, that is to say that the allegations other than those sought to be spun by mere grandiloquence did not make out the ingredients of the offences under sections 15, 17 or 18 of the UAPA.

The State attempted to argue that even the likelihood that Asif’s acts or omissions may threaten the nation are an offence under the UAPA. But the court refuted these allegations to say that in this aspect of likelihood of threat and terror, “The foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a university situate in the heart of Delhi”.

Focusing on how the Shaheen Bagh protestors and other anti-CAA protestors were demonised and vilified by the vicious attacks of the government, the court opined on the same, taking a dim view. “It has been a recurrent theme, repeatedly urged by the State, that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi. We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation”, read the judgment in Asif Tanha’s appeal.

Natasha, Devangana and Asif like many others, have spent over 13 months in Tihar Jail having lost over a year of their lives and several hours with their loved ones. This verdict comes as a juggernaut of hope for not only them but all others who have been awaiting trial within confined spaces under fallacious charges.

The judgments may be read here: 

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The Delhi High Court has vacated the stay on the trial of FIR 59/2020 after Delhi government submitted that the accused may collect the hard copy of the chargesheet from the trial court on March 25. The trial was stayed as Delhi Police had filed a plea against the Trial Court order directing it to provide physical copies of the chargesheet along with all supporting documents to the accused and the High Court had stayed the trial until further orders.

A bench of Justice Suresh Kumar Kait said, “No further order is required to be passed and the same is, accordingly, disposed of with pending application. Accordingly, interim order is vacated,” reported LiveLaw.

Earlier, the Delhi police had submitted that the police report was about 2,700 pages and other documents including witness statements were running into 18,000 pages and had contended that soft copy had already been provided to the accused. Additional Sessions Judge Amitabh Rawat in his October 21, 2020 order directed the Investigating Agency to provide physical copies of chargesheet and accompanying documents to every accused person without fail as mandated by section 207 of the Code of Criminal Procedure. It was against this order that the Delhi Police came before the Delhi High Court.

The Session Court order had stated “The Investigating Agency is duty bound to supply hard copy of the chargesheet with accompanying documents to the accused. The soft copy is a copy made available for the benefit of the accused/counsel. Accordingly, the court also cannot ask for supply of soft copies in the particular manner which is more comfortable of handy to him.”  

On September 16, the Delhi Police had charge sheeted Khalid Saifi, Pinjra Tod members and JNU students Devangana Kalita and Natasha Narwal, Gulfisha Fatima, Jamia Coordination Committee members Safoora Zargar, Meeran Haider, Shafa-Ur-Rehman, suspended AAP Councillor Tahir Hussain and ten others alleging that they participated in a larger conspiracy in the communal violence of February 2020.

The story will be updated once the order is available.

Related:

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Furnishing hard copy of Chargesheet to accused mandatory: Delhi court

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