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‘Not a typical protest in a democracy’: What Delhi HC said as it denied bail to Umar Khalid

Citing WhatsApp chats, alleged meeting at PFI office, speeches, Delhi HC said it was in ‘full agreement’ with trial court that had earlier denied bail to 2020 riots-accused Khalid.

Student-activist Umar Khalid | Photo: ANI
File photo of Umar Khalid speaking during a protest by JNUSU over the citizenship law at Jantar Mantar in New Delhi | Photo: ANI

New Delhi: The Delhi High Court Tuesday rejected the bail application filed by former Jawaharlal Nehru University (JNU) student Umar Khalid in the 2020 Northeast Delhi riots conspiracy case, saying the protest against the Citizenship Amendment Act/National Register of Citizens (CAA/NRC) was “not a typical protest normal in political culture or democracy”.

Communal violence had broken out in February 2020, about a month after CAA/NRC protests in the national capital, and Khalid is an accused in the larger conspiracy case related to the riots. He was arrested in September 2020 and booked under the anti-terror law, the Unlawful Activities Prevention Act (UAPA).

Khalid’s first bail application was rejected in March this year by additional sessions judge Amitabh Rawat. On Tuesday, a bench comprising Justices Siddharth Mridul and Rajnish Bhatnagar said it was in “full agreement” with the findings of the sessions judge.

Khalid’s lawyer, Trideep Pais, had argued that a “terrorist act” as defined under Section 15 of the UAPA was not made out in his case.

However, the court asserted that “the protest was not a typical protest normal in political culture or democracy but one far more destructive and injurious geared towards extremely grave consequence”. It said that it was, instead, a “premeditated conspiracy… engineered to escalate to confrontational chakka-jam and incitement to violence and culminate in riots in (the) natural course on specific dates”.

“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’,” the bench observed.

The court pointed out that Khalid’s name found “recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots”.

It noted that he was a member of a WhatsApp group of Muslim students of JNU, and that he participated in various meetings at Jantar Mantar, Jangpura Office, Shaheen Bagh, Seelampur, and Jaffrabad on various dates. It further noted that there was a “flurry of calls” post the riots among Khalid and other co-accused.

The WhatsApp chats are part of four chargesheets filed by the Delhi Police in the conspiracy case.

During the hearing, the prosecution had also raised objections to certain words used by Khalid in his speeches, calling them “inflammatory”. These included phrases such as “Inquilabli Salam” (revolutionary salute) and “Krantikari Istiqbal” (revolutionary welcome).

Khalid had asserted that these words were merely a call for opposition to an unjust law and that his speech did not “excite anyone present there”.

However, the court rejected this argument saying that a “call to revolution does not have to affect only the immediate gathering”. It referred to Maximilien Robespierre and Jawaharlal Nehru to assert that “revolution by itself isn’t always bloodless”.

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Bond, Saturn, Echo, Delta

During the hearing, Khalid’s lawyer had objected to the prosecution’s attempt to show that he had conspired with co-accused Sharjeel Imam, and claimed they had never spoken to each other.

The court rejected the submission, saying there is a “string of commonality which runs among all co-accused”. It noted that Khalid and Imam were part of the same WhatsApp group. It also said that several protected witnesses had claimed that both were present at several meetings, including one which was allegedly held at the office of the now-banned Popular Front of India (PFI).

The court also relied on statements of several protected witnesses under aliases — Bond, Bravo, Saturn, James, Sierra, Smith, Echo, Delta, Gama and Yankee.

For instance, one of the witnesses, Saturn, had stated that a meeting had taken place between Umar Khalid, Khalid Saifi, and Tahir Hussain at the PFI office in Shaheen Bagh. While Khalid had claimed, on the basis of Call Detail Records, that the three of them had never met, the court rejected his contention.

Khalid’s lawyer had also asserted that the statements of protected witnesses were “either false, being delayed or contradictory or could be concocted or coerced”, and should not be relied upon.

But the court said that at the stage of bail, “the statements of all witnesses have to be taken at face value and their veracity can be tested only at the time of cross-examination”. For this, the high court relied extensively on the Supreme Court’s Zahoor Watali judgement, which had said that at the stage of bail, the court wasn’t required to weigh the evidence against an accused, but only supposed to look at the material provided by the investigation in its entirety and see if there was a prima facie case.

The court also said it “cannot turn a blind eye” to other incriminating material against Khalid, including his speech on 17 February 2020 at Amravati in Maharashtra, in which he had reportedly asked the audience to do a chakka jam (roadblock) during then US President Donald Trump’s visit to India. This, according to the prosecution, heralded the riots of North-East Delhi.

‘Allegations are prima facie true’

In regular criminal cases, bail is supposed to be the norm and pre-trial jail the exception.

However, Section 43D(5) of the UAPA states that a person accused of an offence under Chapters IV and VI (relating to 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”.

The FIR against Khalid mentions Section 16 (punishment for terrorist act), Section 17 (raising funds for terrorist act) and Section 18 (conspiracy) of the UAPA, which are a part of Chapter IV of the law. The court, therefore, said the stringent conditions under Section 43D(5) would apply to Khalid’s case, if the court feels that “there are reasonable grounds for believing that the accusation against such person is prima facie true for an offence” under UAPA.

The court explained that the expression “prima facie true” would mean that the evidence put together by the investigating agency “must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence”.

It then asserted that “on in-depth and considered perusal of the chargesheet, the accompanying documents… this court expresses the inescapable conclusion that allegations against the appellant are ‘prima facie true’”.

(Edited by Nida Fatima Siddiqui)

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