“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

Delhi High Court
Image Courtesy:ahmedabadmirror.com

On May 25, 2022, the Delhi High court continued hearing the bail plea filed by Umar Khalid challenging the order passed by the Trial Court denying him bail in connection with the case involving UAPA charges alleging larger conspiracy in the Delhi riots that took place in 2020.

A division bench comprising of Justices Sidhartha Mridul and Rajnish Bhatnagar continued to hear the plea today.

Senior Advocate Trideep Pais continued to argue extensively on the various discrepancies in the witness statements relied upon by the Trial Court basis which the bail was denied to Khalid. He pointed out contradictions in witness statements under Section 161 CrPC and Section 164 CrPC but the Court was of the opinion that the veracity of the statements under cannot be tested at the stage of bail under either Section 161 or Section 164 CrPC.

With respect to the witness statement that says “when he reached the PFI office with Tahir Hussain, Umar Khalid and Khalid Saifi were already there”, Pais contends that there is no proof of any PFI office at Shaheen Bagh. He brings to the court’s attention that the witness statement alleging conspiracy being created on January 8, does not mention the same when he was interrogated for the first time.

Pais submitted that the prosecution has tried to match the cell tower details with the location of the other accused in the same area to insinuate that all the co-accused were together, whereas according to Pais the accused people never figure in the same location let alone have a meeting.

Pais then went on to refer to the lower court order by Additional Seesions Judge Vinod Yadav that granted him bail in the matter concerning Penal Code and Arms Act charges wherein the judge held that even if it is found that Umar Khalis was with Khalid Saidi and Tahir Hussain doesn’t mean that there was a conspiracy and thereby found the allegations of the meeting to be solely based on one witness was not worthy of any credence.

Further, Pais asked the Court to refer to the Watali Judgement but Justice Mridul pointed out that according to Watali judgement they were not required to test the veracity of the statements. Agreeing with the Judge, Pais stated that admissibility of the statements still had to be tested.

As Pais read out some portions from the Watali judgment concerning good and sufficient grounds, Justice Mridul reportedly remarked, “What you’re asking us to do is to disregard what precedes and we should only read it from the portion in the face of it. What you are looking at is not the entire enunciation of law of this sentence by its very nature. What is the fact that the prosecution is trying to establish? That three of you met. How can we test the veracity of Saturn’s statement? You’re asking us to conduct a re-trial. We can’t test the veracity of the statement. Is it your case that we must be satisfied that he will not ultimately be convicted? As far as law is concerned it says we are not to look at the veracity of the material.” Justice Bhatnagar reportedly added, “You are saying we should test the evidentiary value of the chargesheet at this stage.” Pais retorted, “No, not at all. I am saying the chargesheet should make out the offence of which I am accused.” Justice Mridul replied, “That we agree with you.”

However, with respect to the witness statement alleging conspiracy based on a meeting held at PFI office, when Pais argued that it was not established that it was the office of PFI, Justice Mridul reportedly remarked, “That will be established at trial. The extent to which you are asking us to dissect the statement is not possible while granting bail.”

Pais further argued that it cannot be the case where a chargesheet speaks of the details but the statement doesn’t provide details to support the allegations. The Court reportedly said, “What the statement says it says, what it doesn’t, it doesn’t. Can we say at this stage that we do not believe the witness? You are asking us to hold a mini trial. That we can’t do. You can’t take one instance and say that it wasn’t there. There are 17 instances against you.”

Justice Bhatnagar reportedly added, “We are not dealing with a bail application for the first time. We know what can be done. Satisfaction wrt to evidentiary value doesn’t vary from case to case? Every criminal case revolves on its own. Satisfaction is left to the court. As we said this is all settled. These are guidelines about what is to be considered and what is not.”

The Court directed the counsel to conclude the submissions on Monday and prepare a written synopsis. Co-accused Sharjeel Imam’s bail plea was to be heard today but the court decided to post the matter for July after summer vacations.

Yesterday, Senior Advocate Trideep Pais had reportedly informed the court that the chargesheet filed in the matter is ‘flowery’ and ‘baseless’ and that Khalid was being implicated merely on the basis of one statement given by a protected witness named Bond. Pais claimed that the statement was fabricated and recorded a month a prior to Khalid’s arrest. Khalid reportedly claimed “I have to bear the brunt of two years of imprisonment because you have a statement.”

With respect to the fact that a witness statement taken into consideration for denying bail to Umar Khalid, Pais argued that the Watali judgement was interpreted incorrectly by the Trial Court. He was reportedly quoted saying, “We agree that admissibility is not the question which accused can address but reliability is available to this Court as well as the Special Judge while hearing my bail plea. Watali judgment clearly says that while you do not employ external methods to contradict chargesheet material, statement in itself must be good and sufficient. That is what the special judge missed. The special judge said if there is a statement, I’ll consider it. The burden on the judge considering the bail plea or the bail appeal is far lesser than the burden on the judge considering the framing of charges.” Adding to this he reportedly stated, “Literally, saying the judge had no role to play if a case is presented, nothing to weigh or analyse. The special judge simply reads it as it is and says I won’t read it. We have three arms of the government. Good and sufficient was that role given to your Lordships. I am before your lordships for determination of good and sufficient and prima facie. He eliminates himself from the equation and says I won’t decide it. If the police gives me something, I’ll take it as it is.”

He further argued that it is all hearsay and that the only statement of protected witness Bond which probably contains some material allegations against Khalid was also hearsay and lacked corroboration. He reportedly claimed that “This is a case where a statement is made in order to implicate. It doesn’t have any relation to the violence in Delhi. This man on the 22 December, 2019 calls for a chakka jam as his own admission and then gives exculpatory statement and seeks to implicate me so that his sins are washed away when there is no evidence of my presence.”

Pais argued that now-a-days one statement made by a person was enough to charge him with UAPA without any material evidence. He contented that the statements which are procured drive the prosecution’s case rather than the investigation. He reportedly argued, “I don’t know whose fertile imagination this is but someone should own it. Rims of papers are wasted on this. Nothing but hyperbole.”

With respect to the allegation that co-accused Kahlid Saifi and Meeran Haider had raised another protest site at Khureji on the request of Umar Khalid, Pais reportedly stated, “No witness statement or material whatsoever, even call details, doesn’t match. My question is that why do you do this? You don’t have a Witness statement, no CDR but you…can you imagine the extent of which they have construed? If they have the propensity to put, i can show 10-15 paras like this which are without any basis, then it’s clear that that one solitary witness bond is absolutely fabricated. Material is being fabricated intentionally to create prejudice against me. It goes to show that there is propensity to fabricate which is shown from the baseless chargesheet.”

Background

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

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

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

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

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

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

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