The verdict covers the bail applications of Umar Khalid, Sharjeel Imam, Athar Khan, Khalid Saifi, Mohd Saleem Khan, Shifa-Ur-Rehman, Meeran Haider, Gulfisha Fatima, and Shadab Ahmed.

Another coordinate bench of Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar pronounced a separate order denying bail at 2:30 pm on the bail plea of co-accused Tasleem Ahmed. The Delhi High Court on Tuesday dismissed the bail plea filed by Tasleem Ahmed, accused in the UAPA case alleging larger conspiracy in the commission of 2020 North-East Delhi riots.

All of these accused had challenged orders of the trial court which had consistently denied them bail under FIR 59 of 2020, registered by the Delhi Police Special Cell. 

Background of the Case

The Northeast Delhi riots of February 2020 left 53 people dead and over 700 injured. The Delhi Police alleged that the violence was not spontaneous but the result of a “deep-rooted conspiracy” linked to protests against the Citizenship Amendment Act (CAA).

• FIR 59 of 2020 was lodged on March 6, 2020 by the Special Cell.
• Multiple chargesheets – five in total – were filed between September 16, 2020 and June 7, 2023.
• The prosecution invoked provisions of the Indian Penal Code, 1860 and the Unlawful Activities (Prevention) Act, 1967 (UAPA).
• Out of the 18 originally arrested, 12 remain in custody. The case is presently at the stage of arguments on charge, with over 897 witnesses cited.

The Delhi Police’s case rests on:

1. WhatsApp group chats (notably Muslim Students of JNU (MSJ), Jamia Coordination Committee (JCC), and Delhi Protest Support Group (DPSG)).
2. Protected witness statements.
3. CCTV footage and digital records.

According to the Special Cell, the accused coordinated protests across 23 sites near mosques and main roads in Muslim-majority areas, which were to escalate into a “chakka jam” during then US President Donald Trump’s February 2020 visit — allegedly to embarrass India globally. 

Accused persons and key bail arguments

Umar Khalid

• Represented by Senior Advocate Trideep Pais.
• Submitted that merely being part of WhatsApp groups without posting messages is not criminality.
• Argued that no recovery was made from him and that the alleged “secret” meeting on February 23–24 was not clandestine.
• Stated that no witness statement specifically attributes terrorism-related acts to him.
• Claimed parity with co-accused who had graver allegations but were granted bail.

Sharjeel Imam

• Represented by Advocate Talib Mustafa.
• Stated he was disconnected from co-accused and not part of conspiracy meetings.
• The last act attributed to him was a speech in Bihar on January 23, 2020, predating the riots.
• Argued entitlement to statutory bail under Section 436A CrPC, since he had already spent more than 4 years in custody (over half of the 7-year maximum for UAPA Section 13).

Khalid Saifi

• Represented by Senior Advocate Rebecca John.
• Questioned reliance on “innocuous messages” under UAPA.
• Invoked parity with three co-accused granted bail in June 2021.
• Submitted that chakka jams were a common protest tool, not terrorism.

Shifa-Ur-Rehman

• Said he had already spent more than 5 years in custody.
• Highlighted that participation in protests/meetings cannot be criminalised.
• Argued delay in trial and inconsistencies in witness statements.

Gulfisha Fatima

• Contended she had no active participation in the alleged conspiracy.
• Argued for bail on grounds of parity with those already released.

Meeran Haider

• Echoed parity and delay arguments.
• Asserted that protected witness statements only indicated protest participation.

Mohd. Saleem Khan

• Argued bail on parity and prolonged incarceration.

Athar Khan

• Argued on parity with co-accused already released.

Tasleem Ahmed

• Represented by Advocate Mehmood Pracha.
• Argued delay in trial; over 5 years in custody without seeking adjournments.

Shadab Ahmed

• Plea heard separately; argued contradictions in witness statements and parity with other bail orders.

Prosecution’s Case (Delhi Police)

Represented by Solicitor General Tushar Mehta and Special Public Prosecutor Amit Prasad, the State opposed all bail pleas.

• Mehta described the probe as one of the “finest investigations” carried out.
• Claimed the riots were “pre-planned, well-organised and sinister,” aimed at dividing the nation on religious lines.
• Alleged that the accused intended to globally embarrass India during Trump’s visit by triggering violence.
• Cited Sharjeel Imam’s speeches, claiming they set a timeline for escalating protests.
• Emphasised that this was not a case of “mere riots” but a premeditated attack on sovereignty.
• Highlighted use of a large iron “gulel” (catapult) as evidence of violent preparation.
• Alleged fake documents used for SIM cards and reference to financial irregularities.
• Stressed that long incarceration cannot justify bail in UAPA cases of national security.

During the hearing, according to LiveLaw, SG Mehta said that “If you are doing something against the nation, then you better be in jail till you are acquitted or convicted.”

Related:

How the Delhi riots case remains stagnant with close to a dozen student leaders incarcerated

5 Years of Delhi Riots: Some Punished, Some Rewarded!

Delhi Riots 2020: Umar Khalid withdraws plea from Supreme Court citing “change in circumstances”

Brinda Karat on the Third Anniversary of Delhi Riots- “Cannot Abandon Struggle for Justice”

Hate speeches amplified by television, incited targeted violence against Muslims: CCR Report, Feb ‘20 Delhi riots

The post Delhi High Court dismisses bail pleas of Umar Khalid, Sharjeel Imam, and others in 2020 Riots Conspiracy Case appeared first on SabrangIndia.

O… foot soldiers of night

do you really believe

that you prosecuted the dawn

By imprisoning the ray of light…

listen, you knights of night…

Umar Khalid is

a north star

that brightens the dark sky

a last sigh of enduring pain

the mother suffers

while giving birth to a new life

a lamp inside

ensuring

the engulfing darkness

won’t seep inside of us too

a boundary line of truth

to ensure

lies don’t trespass

Hence

to remember Umar Khalid

is to continue

the fight of memory

against forgetfulness

hankering for love

in the times of

organised hate.

ethical and eternal vigilance

amidst helplessness, despair and delusion

Of course…

Umar is a terrorist

against the Empire of lies

an anti-national

who planted a bomb

of love

in the fort of hatred

a conspirator

who hid a spark of truth

in a box full of deceit

O..knight of nights

write down my name too…

write it next to that of Umar

in your list of terrorists

my name is Shivasundar

Umar and Me

share the same ancestry

my address: Free Universe

– Shivasundar (Translated from Kannada by Samvartha Sahil )

The post Umar Khalid – The Inquliabi appeared first on SabrangIndia.

When the dry, deforested, deserted planet and its toxified climate are hitting back at us with one of the most morbid and cruel heat waves, then weather does become a pertinent issue of conversation, even concern.

I inquired about the heat situation inside the prison from Umar, with the same helplessness and apprehension as I had inquired about the COVID situation two years ago.

He grinned as usual. “I have never faced anything like this,” he said, almost chuckling. His grin becomes intolerable in such situations. I get angry, and he seems to enjoy that.

“No, seriously. This is my fourth summer in prison, but the heat this time is unbearable. I have never witnessed anything like this in my life. In fact, older inmates say they haven’t ever experienced such heat wave,” he said.

If you are still reading this and wondering who I am or who I am talking to, it really doesn’t matter.

This is about the prison conditions of Tihar in Delhi and the heat wave that is severely affecting young and old inmates.

The convicts, the undertrials, the implicated, or the falsely accused ones are all languishing right now in the heat, along with their unfreedom. It’s the same cruel condition that is slowly burning lives within prison walls.

Just for your information, I was talking to Umar Khalid, my soulmate, who has been lodged in Tihar since 2020. Umar was implicated by the Delhi police as a mastermind of the Delhi riots and booked in two cases related to the riots. In one case, he was not only given bail but was eventually discharged. Judges who have heard the other case under the most draconian Unlawful Activities Prevention Act (UAPA) refuse to grant him and many of his other co-accused bail. However, the trial of this case has not even commenced after four years.

Umar continued, “Since our cells are open in front with bars, waves of hot wind keep whiplashing inside. We try to put up sheets and cover the bars, but that’s hardly a cover. And you expect the heat in the daytime, but at night, when the weather doesn’t change even after sundown, it almost feels like a betrayal.”

And he grinned again.

“The ceiling is so high that the fan almost has a perfunctory presence. And they don’t allow us to use coolers. They let us use blankets and quilts in winter but no coolers in the summer. Not even in this heat. But then the Great Indian Jugaad happens. I keep sprinkling water on the sheet that hangs on the bars, on my bed, on the floor, literally everywhere. My chakki (cell) often becomes wet and muddy. But the water dries up quickly. Much quicker than you can imagine. But the water therapy sometimes runs dry when there is a water crisis.”, he casually added.

I now tread the most uncomfortable part of the conversation.

“Are people falling sick?”

“Yes”, he said, “people around me are falling sick. They are suffering from various ailments, especially older people. One person also died. An old man. He dropped dead, possibly because of the heat, I am not sure. No one is. But everyone suspects it’s the heat that killed him.”

I can feel my anxiety rising, but I try to calm down.

“Are you alright? Do you feel any discomfort?”

“I was feeling cramps in my legs yesterday. All of us are drowsy throughout the day because we hardly get any sleep these days. That’s all for now,” he said calmly.

“Umar, please keep drinking plenty of water, but also go to the OPD and tell the doctor about these cramps. Your sodium-potassium levels might have gotten imbalanced.”

I try to hide my panic (and my anger, my frustration and helplessness) yet again. “You need to see a doctor and also get on record your discomforts.”

“This heat is indeed unprecedented,” I said. “I had read on the news that bats were dropping dead from trees.”

“Yes, earlier, there used to be a lot of birds that came to our prison premises. The early mornings were filled with their chirpings. Birds hardly come these days, since the heat wave started. I wonder what has happened to them,”  he said.

Courtesy: Article 14

The post A Conversation With Umar Khalid That Burned Me appeared first on SabrangIndia.

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

Dr. UMAR KHALID | CJP

The post Interpreting the precedent in Vernon in favour of the State, Umar Khalid’s bail plea rejected by Karkardooma Sessions Court appeared first on SabrangIndia.

As per a report in LiveLaw, the Supreme Court dismissed as withdrawn the bail petition filed by the JNU scholar in connection with the Delhi riots larger conspiracy case. Senior Advocate Kapil Sibal, for Khalid, submitted that the petition is being withdrawn in view of “change in circumstances” and sought to file the bail afresh before the trial court.

“Bail matter we wish to withdraw. There has been a change in circumstances, we will try our luck in the trial court, ” Sibal stated before the bench, as per LiveLaw.

It is essential to note that Sibal clarified he will continue to argue upon the separate writ petition filed by Khalid challenging the constitutionality of the provisions of Unlawful Activities (Prevention) Act.

Notably, Khalid has been in custody since September 2020 and he was denied bail by a Delhi High court bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar on October 18, 2022. Under UAPA, 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).

Brief Background of the case against Umar Khalid

Khalid’s appeal against the trial court’s decision to deny him bail in the case was rejected by a division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar after have reserved their decision on September 9, 2022. Rejecting his application, the bench has stated while pronouncing the court order, “We don’t find any merit in the bail appeal. The bail appeal is dismissed,”

The High Court bench stated that there is “prima facie case” established against Umar Khalid in regards to the role played by him during the riots, chakka jaam and destruction of public property. The court order stated, “The protest planned was “not a typical protest” normal in political culture or democracy but one far more destructive and injurious geared towards extremely grave consequences. Thus, as per the pre-meditated plan there was an intentional blocking of roads to cause inconvenience and disruption of the essential services to the life of community residing in North-East Delhi, creating thereby panic and an alarming sense of insecurity. The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such pre-mediated plan and as such the same would prima facie be covered by the definition of ‘terrorist act’.”

Notably, Justice Siddharth Mridul had granted bail to Asif Tanha, Natasha Narwal and Devangana Kalitha.

Khalid has been hounded by the regime for years. His arrest in September 2020 was based 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 9 years. While Khalid had been 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 had recognised that probability of a lengthy trial in the said matter. Importantly, the court had also noted that the material against Khalid was “sketchy” and that he cannot be incarcerated indefinitely on the basis of such evidence.

Related:

When speeches are given a criminal colour & ‘conspiracy’ charges used to incarcerate: Gautam Bhatia on Umar Khalid, Jyoti Jagtap bail orders

Umar Khalid’s Battle against the UAPA Charges to Continue

Umar Khalid’s incarceration: USCIRF Commissioner expresses concern over use of anti-terrorism laws to silence activists

2023: India’s Bad Laws, what a weaponised state means for individual freedoms and indigenous rights

Bail not Jail, India’s constitutional courts’ bumpy ride towards personal liberty

The post Delhi Riots 2020: Umar Khalid withdraws plea from Supreme Court citing “change in circumstances” appeared first on SabrangIndia.

On October 18, 2022, in the larger conspiracy case of the Northeast Delhi riots, the Delhi High Court refused bail to student leader Umar Khalid. Since September 2020, Khalid has been imprisoned. Khalid’s appeal against the trial court’s decision to refuse him bail in the case was rejected by a division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar. On September 9, 2022, the bench had reserved its decision. The bench has stated while pronouncing the court order, “We don’t find any merit in the bail appeal. The bail appeal is dismissed,”

The High Court bench stated that there is “prima facie case” established against Umar Khalid in regards to the role played by him during the riots, chakka jaam and destruction of public property. The court order states, “The protest planned was “not a typical protest” normal in political culture or democracy but one far more destructive and injurious geared towards extremely grave consequences. Thus, as per the pre-meditated plan there was an intentional blocking of roads to cause inconvenience and disruption of the essential services to the life of community residing in North-East Delhi, creating thereby panic and an alarming sense of insecurity. The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such pre-mediated plan and as such the same would prima facie be covered by the definition of ‘terrorist act’.”

Emphasizing on Khalid’s role in organizing the protests that took place in various sites, the court order stated “The name of the appellant finds recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots.” The Bench then added that he was a member of WhatsApp groups like DPSG and Muslim students of JNU and had also participated in various conspiratorial meetings. The Court order states “Admittedly these protests metamorphosed into violent riots in February 2020, which began by firstly choking public roads, then violently and designedly attacking policemen and random members of the public, whereat firearms, acid bottles, stones etc. were used, resulting in the admitted and sad loss of 53 precious lives and the destruction of property worth several Crores. These protests & riots prima-facie seem to be orchestrated at the conspiratorial meetings held from December, 2019 till February, 2020.”

Additionally, the court stated that if the chargesheet and evidence gathered during the inquiry are accepted at face value, there was a premeditated conspiracy for producing disruptive chakka-jam and pre-planned protests at several scheduled places in the national capital, which was designed to “escalate to confrontational chakka-jam and incitement to violence and culminate in riots in natural course on specific dates.”

The court noted that Umar Khalid had given a speech on February 17, 2020 in Amrawati, Maharashtra, in which he made reference to the visit of then-US President Donald Trump, which the prosecution claimed was the precursor to the 2020 riots. The court was of the opinion that it cannot ignore the incriminating evidence against Umar Khalid. The court in its order stated “The manner in which the administration initially rejected permission for the appellant’s speech and thereafter how the speech came to be delivered clandestinely on that very day is something which gives credibility to the accusation of the prosecution. Further, the CCTV footages filed along with the charge- sheet, its analysis and the flurry of calls amongst the appellant and other co-accused after the riots of 24th of February, 2020 also merits consideration in the background of various meetings, statements of various protected witnesses and the WhatsApp chats filed in the charge- sheet.”

Referring to the Sr. counsel representing Khalid’s argument that word ‘revolution’ in his speech was not a crime and that there was no call for violence or incitement of any sort in the same, the Bench stated that “when we use the expression “revolution‟, it is not necessarily bloodless. This court is reminded of that although, the activity of “revolution” in its essential quality may not be different but from the point of view of Robespierre and Pandit Nehru, in its potentiality and in its effect upon public tranquillity there can be a vast difference.”

In regards to a terrorist act, the bench noted that Section 15 of the UAPA, which defines a terrorist act, covers not only the potential of threatening unity and integrity but also the desire to do so. The court stated in its order that the provision includes “not just the intent to strike terror but the likelihood to strike terror; not just the use of firearms but the use of any means of whatsoever nature, not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, that constitutes a terrorist act.”

Lastly, the bench also observed that under Section 18, not merely conspiracy to commit a terrorist act but an attempt to commit or advocating the commission or advising it or inciting or directing or knowingly facilitating commission of a terrorist act that is also punishable. “In fact, even acts preparatory to commission of terrorist acts are punishable under section 18 of UAPA. Thus, the objection of the appellant that a case is not made-out under UAPA is based on assessing the degree of sufficiency and credibility of evidence not the absence of its existence but the extent of its applicability; but such objection of the appellant is outside the scope and ambit of section 43D(5) of the UAPA,” the court stated in its order.

With this, the bench dismissed the appeal and upheld the order of the lower court. The order of the court can be read here.

The 765 Days Long Incarceration of Umar Khalid

Dr. Umar Khalid, an activist and human rights defender who has been hounded by the regime for years. 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 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.

Bail Application in the Delhi High Court

Dr. Umar Khalid had moved the Delhi High Court, on April 21, 2022, challenging the lower court order denying bail to him in the Unlawful Activities (Prevention) Act (UAPA) case related to the February 2020 Northeast Delhi violence larger conspiracy case. The bail plea was heard by a bench of Justices Siddharth Mridul and Rajnish Bhatnagar.

Submissions in HC made by Counsel, Senior Advocate Trideep Pais

(a)    Arguments with respect to criticism of the government

While hearing the appeal filed by Umar Khalid against the Trial Court’s order denying him bail, Justice Rajnish Bhatnagar had asked Dr. Khalid’s lawyer if it was appropriate to use the word “jumla” against the Prime Minister of India. Advocate Pais had reportedly submitted that criticism of the government is not a crime. Justice Bhatnagar further inquired about the word ‘changa’ used in context of the Prime Minister, to which Pais reportedly responded, “It is satire. Sab changasi was probably used by PM in a speech.”

Advocate Pais had further submitted, “Criticism of the government cannot become a crime. 583 days in prison with UAPA charges was not envisaged for a person who speaks against the government. We cannot become so intolerant. At this rate, people will not be able to speak.” However, according to Justice Bhatnagar, a line needs to be drawn for criticism. He reportedly remarked, “There has to be a Lakshman Rekha.”

Justice Mridual further enquired about the use of words ‘inquilab’ and ‘krantikari’. He had stated, “He is invited to Amravati to deliver which he himself calls a krantikari and inquilabi speech. Your argument regarding free speech, nobody can have a question. Question is, did his speech and subsequent actions lead to the riots that happened? The live link with speech and other material gathered whether it led to incitement of violence? Nobody has qualms about free speech but what is the consequence of your employing these expressions, offensive as they evidently are. Did they incite the populous in Delhi to come out to streets? If they did even prima facie, are you guilty of UAPA sec. 13? That is the question before us.”

Pais reportedly submitted, “The speech in itself didn’t call to violence. No witness to violence of Delhi have said that I was incited by this. Only two witnesses cited to have heard this speech, they say they weren’t incited by the speech.”

(b)   Arguments with respect to the invocation of UAPA

Claiming that invoking offences under UAPA in the FIR was a calculated move, Pais brought to the Court’s attention that initially only bailable offences were added to the FIR and non-bailable offences including UAPA was only added a later stage. As per LiveLaw, Pais argued, “This is a mala fide invocation (of UAPA) in order to just ensure that people don’t get bail. FIR isn’t worth the paper it’s written on.”

Advocate Paishad further based his argument on the Indian jurisprudence citing the Kedarnath Singh case law arguing that the speech in question has no incitement as contemplated by the said judgement and the speech did not incite violence. “The crowd was sitting, there was no call for violence. However, much we disagree with what the appellant said, it was by no means a speech that could come near sec. 124A of IPC, leave alone the offences of terror,” Pais had argued.

(c)   Arguments about contradictory witness statement relied upon by the Trial Court

Advocate Pais brought to light the contradictory statements made by the witnesses including the protected witnesses upon which forms an essential part of the reason for denying bail in the Trial Court’s order. He reportedly argued, “It flies in the face of each other. There are several witnesses like that. I will adhere to Watali and other judgments but i will show that on the face of it, chapter 4 offences are not made.”

Advocate Pais had further submitted that “The offence of 124A or there being any reaction of speech in Delhi is not only unfounded, but unlikely and more than remote. The special court also didn’t find it. At best, beta statement where he says intention to do chakka jaam, chakka jaam in itself cannot be terror by any stretch of imagination.”

According to Justice Mridul the acts of co-conspirators can be attributable to Khalid as part of the said conspiracy. He was quoted saying, “This is the reason why case of Prosecution is that it was conspiracy between large no of conspirators. By himself he may not be able to give in jaam to conspiracy, for that there have to be co-conspirators.”

Pais responded saying that the only common intention that comes across amongst the alleged co-conspirators was to conduct peaceful opposing CAA and nothing else. He said, “It can’t be that someone wakes up in November and spins a yarn about what my speech was about and half of it is wrong and can be termed as incitement. There has to be nexus between speech and violence in Delhi.”

In opposition to the appeal, the Prosecution had earlier told the Court that the “narratives” sought to be created by Dr. Khalid cannot be looked into as his defence at the stage of bail. It was the Prosecution’s case that Dr. Khalid’s role should not be viewed in isolation as it is the case of conspiracy. The prosecution further relied upon the trial court’s order that dismissed bail pleas of co-accused Khalid Saifi and Shifa-ur-Rehman which demonstrates the extent of the alleged conspiracy and the role played by each conspirator.

(d) Arguments about membership of Whatsapp groups

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. 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.

(e) Arguments regarding the attribution of violence to the speech made by Umar Khalid

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. To this, Justice Mridul had remarked that while the speech is in bad taste, it does not make it a terrorist act. 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.

Contentions forwarded by the prosecution, SPP Prasad

(a) Arguments with respect to the continuous support provided at every spot and protest during the riots was co-ordinated through whatsapp:

Special Public Prosecutor Amit Prasad argued before the bench about how the Shaheen Bagh protest was not driven by women protesters, but was instead planned and coordinated by activists who also tried to make the protest look secular instead of just driven by Muslims. It was the prosecution’s case that every spot and protest during the riots had continuous support and was co-ordinated through whatsapp group namely DPSG. He reportedly argued, “Every time some police action is taken, immediately lawyers are sent. Support is given.” He reportedly added, “I will demonstrate from their own chats that how they are saying that bring in more Hindus so that it looks like secularism. Locals did not support. There were people who were transported from sites. And I’ll show from statement of witnesses, how people were transported.”

Prasad further argued that there was spread of misinformation, blockade of roads at protest sites, attack on police personnel and paramilitary violence, damage to public properties and use of petrol bombs and other elements. SPP Prasad also contended that the protest sites were created through Whatsapp groups with the help of mobilization of various individuals. He reportedly argued, “There is contention raised that protest sites came on their own. It was not so. They were created, not organic in nature, created with mobilizing people from various places. Each protest site is being managed and handled by people from Jamia and DPSG.”

(b) Arguments with respect to the speech made by Umar Khalid at Amravati, Maharashtra

The prosecution made the argument that that the speeches made by various accused persons in the First Information Report (FIR) had a ‘common factor’, essence of which was to create a sense of fear in the Muslim population of the country. Specifically referring to the speeches made by Umar Khalid, Sharjeel Imam and Khalid Saifi, SPP Prasad argued that they were all connected each and formed a part of the larger conspiracy to commit the Delhi violence 2020. 

He emphasized that the speech delivered by him in Amravati in February 2020 was a “very calculated speech” which brought various points including Babri Masjid, triple talaq, Kashmir, suppression of Muslims and Citizenship (Amendment) Act (CAA) and National Register of Citizens (NRC). The SPP agrued that the point that comes out through the specch is that Khalid’s grievance is not against CAA NRC, it is against Babri Masjid and Kashmir.

Trial Court’s Order

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 Karkardooma Court in Delhi had denied bail to Dr. Umar Khalid after deferring the order thrice, in connection with the case relating to the alleged larger conspiracy behind the communal violence that broke out in East Delhi in February 2020, where he is facing charges under the draconian Unlawful Activities (Prevention) Act and Indian Penal Code.

Arguments put forth by the Counsel for Umar Khalid:

(a) Advocate Pais referred to the WhatsApp group that was allegedly made to conspire with co-accused persons to unleash terror in the National Capital. He argued that Umar Khalid never sent a single message in this said group. The charge sheet has stated that Khalid and co-accused Sharjeel Imam communicated about the violence.Pais further alleged that there was no consistency in the charge sheet as it first claims that Imam and Khalid have a difference of opinion and later states that Imam was mentored by Khalid who asked him to start the WhatsApp group.

(b) Advocate Pais also argued that organising a protest meeting and planning a chakka jaam (road blockade) is not an offence that attracts the charges of criminal conspiracy. He argued that Khalid has been selectively targeted based on the importance to the opposition against the citizenship laws.

(c) Advocate Pais emphasized on the fact that that there were 750 FIRs registered before February 28, 2020 while the FIR 59/2020 (UAPA conspiracy case), that implicates Umar, was registered on March 6, 2020. He argued that there was no occasion or event to register FIR 59/2020 and nobody should have been arrested under it. “The charge sheet filed before conclusively shows that there was no crime disclosed when the complaint was made”, he said.

(d) Advocate Pais also pointed out that the police relied on the speech from a YouTube clip used by news agencies (News 18 and Republic TV), and not the entire speech delivered by Khalid in Amravati, Maharashtra. He added that when the news channels were asked by the police to provide the source of the speech, they said that they relied on a tweet made by Amit Malviya. 

(e) Pias further submitted before the court that the Police indulged in rhetorical assertions in the charge sheet which were the result of the fertile imagination of the police officer and had no truth to it. He argued that the charge sheet stated that Sharjeel Imam is Dr. Khalid’s disciple, but this has not been proven anywhere. 

Police misquoted Khalid’s speech

Umar Khalid’s counsel then referred to the charge sheet against Dr. Umar Khalid and pointed out some disturbing factors. He said that there was a public event (Khalid’s speech in Amravati) which was wrongly interpreted by the Police.

He said, “The first event was a speech in Amravati. The FIR says that I (Umar Khalid) gave “bhadkau bhashan” (provocative speech). A false description has been given about the public event; the prosecution is trying to portray it as sedition.” Pais then referred to the supplementary charge sheet where the Police has used the words “Umar Khalid, a veteran of sedition”, to argue that this is not a way charge sheets are filed.

He added, “Describing speeches when there isn’t more than one, they call it ‘bhadkau bhashan’. There are a bunch of people, sitting and listening to a speech who is speaking against CAA. None of them meet the test of evidence as a prima facie case under UAPA. This is giving a false impression to a public event which the prosecution is trying to show as terror under UAPA.”

He argued that the basis of the protest against the Citizenship Amendment Act, 2019 is to “belong to the country”. Meanwhile, the police claimed that Dr. Khalid was “a veteran of sedition” who also said that, “Bharat tere tukde honge” (India will be divided). This was in the backdrop of the 2016 incident in Jawaharlal Nehru University (JNU), where some students including Khalid were arrested and booked under sedition for allegedly raising anti-national and pro-Afzal Guru slogans.

Pais vehemently argued that no charge sheet in the past has mentioned that Khalid has raised slogans about dividing India. He asked, “When you didn’t have this in the first charge sheet in 2016, how did you produce this in the Delhi riots charge sheet and say that Umar Khalid said Bharat tere tukde honge? When you produced 17,000 pages against him, you should have added the 2016 charge sheet also. Is this how charge sheets are written? It seems like a script of some news channel. Where did they get this from?”

False witness statements

Advocate Trideep Pais also submitted that the statements provided by the protected witness are inconsistent and cannot be the basis on which Dr. Umar Khalid is incarcerated indefinitely. He said that one of the biggest theories of FIR 59/2020 is that there was a conspiracy on January 8, 2020 where Dr. Khalid, and his co-accused Khalid Saifi and Tahir Hussain met and planned the Delhi violence. Pais submitted that the protected witness was either speaking under pressure or with a “forked tongue”.

He submitted that the witness made two different statements in two different FIRs, which are inconsistent, and must not be taken seriously. He then read out his statement recorded on May 21 under section 161 of the CrPC where the witness mentioned nothing about the January 8 incident.

But on July 29, the witness mentioned the January 8 meeting, and said that he went inside the Popular front of India (PFI) office where the accused were all sitting and discussing the “plan”. Then, in August 2020, the witness submitted before the Magistrate that he did not go inside the office. But again, in September, he said that he was waiting outside the office. Pais asked, “How much malice should I show to prove my point? I’m trying to say that there is no way these statements are consistent with each other in order to meet the test of UAPA. Can we rely on this witness to keep someone in jail? How can we believe in this witness?”

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 meetings in 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 Whatsapp group 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.

Taking into consideration the proceedings of Khalid’s bail hearings and the remarks made by the Court in this context, Gautam Bhatia has argued in his article titled ‘Unfreedom of Speech’ for Indian Express: “An enthusiastic political speech, a fiery political speech, a political speech that takes aim at opponents through satire, parody, or even by generating a sense of outrage- these may offend people’s sensibilities and ideas of civility, taste, and good behaviour- but these are not reasons to deprive an individual of their freedom. As the guardian of civil rights, the Court bears the burden of ensuring that the Lakshman Rekha does not turn into a weapon to permanently silence democratic dissent”.

The Karkardooma 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.

Bail in the case under IPC and Arms Act

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.”

Related Articles:

Delhi court rejects application to handcuff Umar Khalid & Khalid Saifi

Umar Khalid’s speech prima facie not acceptable, obnoxious: Delhi HC

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 Umar Khalid’s Battle against the UAPA Charges to Continue appeared first on SabrangIndia.

On September 7, the prosecution concluded its arguments before the Delhi High Court, opposing the bail plea filed by the former Jawaharlal Nehru University (JNU) student Dr. Umar Khalid.

Dr. Umar Khalid had moved the Delhi High Court, on April 21, 2022, challenging the lower court order denying bail to him in the Unlawful Activities (Prevention) Act (UAPA) case related to the February 2020 Northeast Delhi violence larger conspiracy case.

The bail plea was heard by a bench of Justices Siddharth Mridul and Rajnish Bhatnagar. The matter has now been listed for September 9 for hearing rebuttal submissions of Khalid’s counsel, Senior Advocate Trideep Pais.

The prosecution, which had commenced its submissions on August 1, has opposed the bail plea of Khalid saying the speech delivered by him in Amravati in February 2020 was a “very calculated speech” which brought various points including Babri Masjid, triple talaq, Kashmir, suppression of Muslims and Citizenship (Amendment) Act (CAA) and National Register of Citizens (NRC). Arguing in support of the trial court’s order of denying Khalid’s bail petition, Special Public Prosecutor Amit Prasad said that the trial court has appropriately dealt with all the recorded evidence filed in this case.

On Wednesday, SPP Prasad referred to several statements given by the witnesses and also read out a portion of Khalid’s Amravati speech.

Previously, the prosecution also made the argument that that the speeches made by various accused persons in the First Information Report (FIR) had a ‘common factor’, essence of which was to create a sense of fear in the Muslim population of the country. Specifically referring to the speeches made by Umar Khalid, Sharjeel Imam and Khalid Saifi, SPP Prasad argued that they were all connected each and formed a part of the larger conspiracy to commit the Delhi violence 2020. Khalid, Sharjeel Imam, and several others have been alleged to be the criminal “masterminds” of the February 2020 communal violence, and have been booked under UAPA and several provisions of the Indian Penal Code (IPC). The violence had left 53 people dead and more than 700 injured.

It was the prosecution’s case that the protests were organised using Whatsapp groups. SPP Prasad reportedly argued, “There is contention raised that protest sites came on their own. It was not so. They were created, not organic in nature, created with mobilizing people from various places. Each protest site is being managed and handled by people from Jamia and DPSG.”

Brief background of the case

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,

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

Related:

Delhi Violence: Prosecution opposes Umar Khalid’s bail plea claiming protests were planned in detail

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

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

“You’re asking us to conduct a re-trial. We can’t test the veracity of the statement at the stage of bail”: Delhi HC on Umar Khalid’s bail plea

Protests were against unjust law, protesting is not a terrorist activity: Umar Khalid

The post Umar Khalid bail plea: Prosecution concludes arguments before Delhi HC appeared first on SabrangIndia.