New Delhi: Dismissing the bail application of former Jawaharlal Nehru University (JNU) scholar and activist Umar Khalid in the 2020 Delhi riots larger conspiracy case, a Delhi court Tuesday agreed with the prosecution that there was no delay in the framing of the charges or the commencement of the trial on the part of the prosecution in the case.
In its order, Additional Sessions Judge Sameer Bajpai opined that the delay was due to the accused moving separate applications demanding that the prosecution be asked if the investigation in the case was complete, before considering the framing of the charges.
“Thus, when the delay in the proceedings is not on the part of the prosecution and in fact is on the part of the accused persons, the applicant cannot take benefit of the same,” the court observed.
Khalid was arrested in the larger conspiracy case related to the northeast Delhi riots, which invoked the stringent Unlawful Activities (Prevention) Act, 1967 (UAPA), and other sections of the Indian Penal Code (IPC). The FIR had claimed that the riots were a “pre-planned conspiracy” that was “hatched by (former) JNU (Jawaharlal Nehru University) student Umar Khalid and his associates”.
The court was hearing Khalid’s second bail application, on the ground of “change of circumstances”. His first bail application was rejected by the trial court in March 2022, which was upheld by the Delhi High Court in October 2022.
Khalid had then approached the Supreme Court in April 2023. However, he withdrew his appeal from the apex court in February this year on the ground that there was a change of circumstances.
The trial court asserted that since the high court had already dismissed his appeal and Khalid had withdrawn his appeal from the Supreme Court, the trial court’s order of March 2022 denying him bail “has attained finality and now, in no stretch of imagination, this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”.
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The change in circumstances
In its order, the trial court now noted that Khalid’s lawyer had not specifically mentioned what the change in circumstances was, on the basis of which his bail application should be re-considered. The court opined that it could either be the delay in the proceedings or the Supreme Court’s latest judgment in Vernon Gonsalves’ case.
Khalid had specifically relied on the Supreme Court’s judgment in the case of Bhima Koregaon case accused Vernon Gonsalves. In this verdict, the apex court had emphasised on the need to do a “surface-analysis of probative value of the evidence” at the stage of granting bail to the accused, to see if the quality of the evidence satisfied the court.
After such an analysis, the court had found that there had been “no credible evidence” against Vernon Gonsalves and Arun Ferreira to show that they had committed any terrorist act or entered into a conspiracy to do so.
This 2023 judgment had assumed significance because the Supreme Court had previously asserted — in April 2019 in the Zahoor Ahmad Shah Watali judgment — that at the stage of bail, the court wasn’t required to weigh the evidence against an accused, and that it was only supposed to look at the material provided by the investigation in its entirety to see if there was a prima facie case. This had made getting bail under UAPA extremely difficult.
If there is a change in the law after rejecting the first bail application, courts can then reconsider the application, considering it a change in circumstances. “But the court has to see first if in fact there is any change in law and the applicant can get any benefit out of the changed law,” the trial court explained.
However, the trial court now said that the Zahoor Watali judgment “was the basis of the Vernon case”. It observed that “there are no change in circumstances only due to the fact that the words ‘surface analysis’ have been added in it”.
It, therefore, said that the only question that remained was whether a surface analysis of probative value of the evidence had been undertaken in Khalid’s case.
The trial court also noted that in its order passed in March 2022, dismissing Khalid’s first bail application, the court had discussed the merits of the case and his role in detail. It also opined that the Delhi High Court, while dismissing his appeal, had also discussed his role, and considered all the facts and circumstances in detail.
“Further, in the next paras also, the Hon’ble High Court analysed the case against the applicant and finally concluded that allegations against the applicant are prima-facie true and that the embargo created by section 43D(5) of UAPA squarely applies against the applicant and the applicant does not deserve bail,” the trial court observed.
Section 43D(5) of the law says that a person accused of an offence under Chapters IV and VI of the UAPA (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.
Commenting on the Delhi High Court order that upheld the rejection of Khalid’s bail application, the trial court held that the high court “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”.
‘No terrorist act’
In the trial court now, Khalid submitted that he is a 36-year-old researcher and scholar, and had already spent three and a half years in custody. He also pointed out that he was arrested in September 2020, almost six months after the registration of the FIR, despite the fact that he had been cooperating with the authorities in the meantime.
He further submitted that the chargesheet and the supporting material presented by the prosecution did not satisfy the ingredients of the alleged offences under the Unlawful Activities (Prevention) Act. His actions, his lawyer told the court, do not fall under the definition of a “terrorist act” under UAPA.
Khalid asserted that he should be entitled to bail on the ground of parity as several of his co-accused, including Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha, had been granted bail, despite the fact that the prosecution story attributed a more direct role to the latter three.
The prosecution, among other things, claimed that Khalid could not claim relief on the ground of delay, asserting that the it was ready to begin arguments on 11 September last year, on the point of framing of charges, but the lawyers for the accused had raised an objection saying that before addressing arguments on charges, the prosecution had to make it clear that the investigation was complete.
(Edited by Mannat Chugh)
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