New Delhi: Rejecting the bail appeal of former JNU student leaders Umar Khalid and Sharjeel Imam, along with seven others, the Delhi High Court held that the evidence points to their “prima facie grave role” in orchestrating a conspiracy that culminated in the 2020 Northeast Delhi riots.
All nine accused—Sharjeel Imam, Umar Khalid, Mohd Saleem Khan, Shifa-ur-Rehman, Athar Khan, Meeran Haider, Shadab Ahmed, Abdul Khalid Saifi, and Gulfisha Fatima—are behind bars since 2020, with the trial yet to commence.
“It becomes the arduous task of the court to strike a balance between individual rights and the interests of the nation, as well as the safety and security of the general public at large. Therefore, these appeals do not succeed,” the HC said in its 133-page order pronounced 2 September.
The appeals concerned their alleged involvement in a “deep-rooted criminal conspiracy” linked to the February 2020 riots, with the prosecution alleging they were masterminds behind pre-planned, violent protests against the Citizenship (Amendment) Bill (CAB) and the National Register of Citizens (NRC).
The Delhi Police’s Special Cell was registered an FIR in 2020 under provisions of the erstwhile Indian Penal Code (IPC) and the Unlawful Activities (Prevention) Act (UAPA). Later, offences under the Prevention of Damage to Public Property Act, and the Arms Act were added.
“The charge sheet runs into more than 3,000 pages, with an additional 30,000 pages of electronic evidence. The state carried out a detailed investigation, which led to the arrest of several individuals and the filing of four supplementary charge sheets, with multiple accused persons charge-sheeted, and as many as 58 witnesses, including protected witnesses, whose statements … .were recorded,” the court observed.
“The pace of the trial will progress naturally. A hurried trial would also be detrimental to the rights of both the appellants and the state. The parties have informed that the trial is currently at the stage of hearing arguments on the framing of charges, thus, it indicates that the case is progressing.”
Concluding that there were “reasonable grounds for believing that the accusation against such person is prima facie true,” the bench of Justices Navin Chawla and Shalinder Kaur ruled that the statutory bar under Section 43D(5) of the UAPA applied in this case.
Section 45D(5) restricts bail for accused individuals mandating that bail be denied if the court finds reasonable grounds to believe the accusation is “prima facie true” based on the case diary or charge sheet. This provision, introduced in the 2008 amendment, creates a stringent bail regime, making it difficult to secure bail unless the prosecution’s evidence is demonstrably weak or absent.
The bench examined the legal framework for bail under the UAPA, assessing evidence such as WhatsApp chats, speeches, witness statements, and financial transactions to determine if there were “reasonable grounds for believing that the accusation against such person is prima facie true.”
The order also addressed arguments relating to trial delays, prolonged incarceration, and claims of parity with co-accused who had been granted bail.
The HC clarified that its findings were limited to the bail considerations and shouldn’t be “construed as an expression on the merits of the case or on the evidence, which will have to withstand the rigours of cross-examination and trial”.
On the plea of parity with co-accused Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha, who were granted bail, it pointed out that the Supreme Court directed that their bail orders “shall not be treated as a precedent.”
It held that the roles of Imam and Khalid were “prima facie grave… having delivered inflammatory speeches on communal lines to instigate a mass mobilisation.” “In contrast, although the co-accused persons named above were present in the conspiratorial meetings and were members of the WhatsApp groups, however, their role was limited when juxtaposed with these appellants,” the bench said, ruling out parity.
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‘A premeditated conspiracy’
The prosecution argued that the violence was “no ordinary protest, but rather premeditated and well-orchestrated riots, planned out by the masterminds on a mass scale, intended to have nationwide implications, and to undermine the secular fabric of the nation.”
The Delhi government outlined four phases of conspiracy—formation of WhatsApp groups and sit-in protests (Dec 2019), strategic mobilisation and speeches (Dec 2019–Feb 2020), escalation through alleged stockpiling weapons (Jan–Feb 2020); and finally disruptive ‘chakka jams’ (road blockade) and targeted violence in February.
The bench acknowledged the right to a speedy trial under Article 21 (protection of life and personal liberty) but said bail is not a “mechanical exercise.” It must balance “safeguarding the liberty of an accused, while on the other, ensuring the right of the prosecution to establish its case.”
While citing precedents that allow bail in cases of excessive delay, it stressed that “the grant of bail on the sole ground of long incarceration and delay in trial is not a universally applicable rule in all the cases.” Given the scale of the case, it found the trial’s pace natural and concluded that “these appeals do not succeed” on this ground.
The court reiterated that its “discretion to grant bail is circumscribed by virtue of Section 43D(5) of the UAPA.” Referring to precedents, it underscored that courts must conduct only a “surface analysis” of probabilities without detailed evaluation of the evidence.
“There may not be direct evidence to establish a conspiracy, and the courts may have to rely on circumstantial evidence,” it said, adding that “the proof of shared intention would suffice, which can be inferred from the conduct of the accused.”
The right to participate in peaceful protests and to make speeches in public meetings is protected under Article 19(1)(a) but such rights are “not absolute” and “any conspiratorial violence under the garb of protests or demonstrations by the citizens cannot be permitted,” it added.
Rejection of bail pleas
In a common judgement, the court divided its findings in 4 parts. The first dealt with the bail pleas of Sharjeel and Khalid; the second concerned Athar, Shadab, Saifi, and Saleem; the third of Shifa and Meeran; and the fourth of Gulfisha.
The court held that Sharjeel and Khalid played a “central and key part in the alleged criminal conspiracy by organising, coordinating and inciting masses to protests, which escalated into violence and communal unrest.” It noted the Solicitor General’s submission that they were the “masterminds behind the entire sequence of events” and said their speeches “prima facie indicate their role in the alleged conspiracy.”
Khalid, who was arrested on September 14, 2020, argued statements of protected witnesses were coerced and lacked reliability, and WhatsApp group membership was not criminal.
The court held Sharjeel’s absence from the riot sites “has no merit” as “all the initial planning, creation of groups, conceptualisation, and incitement regarding the CAA/NRC had been completed by that point.”
It found that “the alleged inflammatory and provocative speeches” delivered by the duo, “when considered in totality, prima facie indicates their role in the alleged conspiracy”.
Athar, Shadab, Saifi, and Saleem were found to have played a “vital and significant role in the hatching of the conspiracy and executing it.” Despite arguments of clean antecedents and lack of direct proof, the court found prima facie evidence of their “respective active role.”
It found prima facie evidence of their presence in meetings where violence escalation and CCTV destruction were discussed. The court reiterated that “a mini trial at the stage of consideration of bail is impermissible”. Parity was denied due to the “distinct” roles of these appellants compared to those granted bail.
For Shifa, the court noted allegations of fundraising, holding that “the possibility of misuse of position” by the Alumni Association of Jamia Millia Islamia (AAJMI) president cannot be ruled out at this stage.
It stated that “the allegation of funding is a serious factor which cannot be brushed aside at this stage”. Parity was denied as their “position and role… is placed differently than the co-accused persons” who were granted bail.
On Gulfisha, the judges recorded allegations that she managed protest sites, created WhatsApp groups such as ‘Warrior’ and ‘Aurton ka Inquilab,’ and used code words to mobilise women.
Despite her claims of clean antecedents and long incarceration, the bench found her role “distinct” from Devangana and Natasha. It found that creation of the WhatsApp groups “cannot be seen in isolation” and that the allegations of using “code words” and receiving funds were deemed serious.
(Edited by Tony Rai)
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