The Never-Ending Bail Hearing In Delhi Riots Conspiracy Case

The prosecuting agency should not oppose bail plea citing seriousness of offence if it cannot protect accused's right to speedy trial, the Supreme Court has observed recently in a UAPA case.

The Apex Court also reminded the trial courts and High Courts “a very well-settled principle of law” that bail is not to be withheld as a punishment.

While the Supreme Court has yet again emphasized on the importance of speedy trial and grant of bail irrespective of the nature of alleged offence, it still remains a dream for many undertrials languishing for years in jails. Take the larger conspiracy case of the Delhi riots(FIR 59/2020), in which several students and activists have been arrested under the draconian Unlawful Activities Prevention Act.

The case, which has seen arrests of students and social activists, is a classic case where not only there has been a violation of the right to speedy trial of the accused persons but also of the right to a speedy bail hearing before the High Court.

So far, only three accused persons in the case - student activists Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal- have got bail in the case after the Delhi High Court in June 2021 prima facie found that they were only organizing protests, which cannot be regarded as a terrorist act as per the UAPA. The Supreme Court affirmed the Delhi High Court's judgment in May 2023 and granted liberty to the co-accused in the case to raise the plea of parity to seek bail.

Two weeks ago, the bail pleas filed by eight accused - who have been under custody since their arrest in 2020- before the Delhi High Court were adjourned yet again. The bail pleas have remained pending for almost 2 years and have seen judges change every few months for a new cycle of hearing to begin everytime. Many of the arrested persons were at the forefront of organizing anti-CAA protests in Delhi. 

Except for the UAPA case, the 8 accused persons are not under custody in any other FIR. While some have been discharged in other cases, trials are presently ongoing in some FIRs. 

The only individual's case from FIR 59/2020 to have reached the Supreme Court after being adjudicated and denied bail by the Delhi High Court is of Umar Khalid. A bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar had denied bail to Khalid on October 18, 2022. He withdrew his bail from the Supreme Court in February this year citing change in circumstances. His second regular bail plea was dismissed by the trial court on May 28.

As far as FIR 59/2020 is concerned, the trial is yet to commence and the case is still in limbo as the arguments on charge have not begun yet. Even though the FIR was registered in March 2020, it took over three years for the trial court to conclude the stage of supply of documents under Section 207 of CrPC. The matter is now listed before the trial court on July 11.

“…we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India,” the words of the Supreme Court in its recent verdict fit perfectly well in the discussion.

The table below shows the details about the number of times the bail pleas have been listed before the High Court, when were they listed for the first time and change in the composition of benches.

FIR 59 of 2020 being probed by Delhi Police's Special Cell has been registered against 18 accused persons. The provisions invoked are of criminal conspiracy, sedition, unlawful assembly, rioting, promoting enmity between different groups etc. under the Indian Penal Code, 1860; unlawful activities, terrorist act and organizing of terrorist camps under UAPA and various other offences under Prevention of Damage to Public Property Act 1984 and Indian Arms Act 1959.

The eight appeals were filed in the Delhi High Court from early to the end of 2022 and have been listed before various division benches by now. The change in bench composition was because of change in the roster.

A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar heard the bail pleas from 2022 to November 2023 as a special bench. Out of the 8 accused persons, judgments were reserved in five cases namely Khalid Saifi, Gulfisha Fatima, Shifa ur Rehman, Meeran Haider and Mohd Saleem Khan.

While some of the petitions were directly listed before Justice Mridul's bench for the first time, some were listed before different benches due to the difference in the date of filing of the appeals. Eventually, the matters were listed before Justice Mridul led bench and the batch was later made part heard. However, the Central Government notified the transfer of Justice Mridul as Chief Justice of the Manipur High Court on October 16, 2023. Resultantly, the bail appeals had to be reargued.

A glance at Individual Cases

Sharjeel Imam's bail plea was listed on April 29, 2022, for the first time before Justice Mridul led bench. Due to roster change, the matter was listed before a division bench headed by now retired Justice Mukta Gupta on May 24, 2022. However, the case was transferred back to Justice Mridul's bench.

Since May 25, 2022 to October 26, 2023, the bail appeal was listed before the special bench 41 times. The case was heard on some dates but it was also adjourned on various dates due to request of either sides or non-assembling of the bench. As judgment was not reserved in the matter, the bail plea had to be listed before other benches following Justice Mridul's transfer.

Meeran Haider's bail plea was listed for the first time on May 20, 2022, before Justice Mukta Gupta led bench. It was listed before Justice Mridul's bench for the first time on July 22, 2022. After being listed 49 times, the special bench reserved judgment on March 06, 2023. The matter was last heard by the special bench on October 16 last year.

Like Haider, Mohd Saleem Khan's bail plea was also listed for the first time before Justice Mukta Gupta's bench on May 23, 2022. It was then listed before Justice Mridul's bench on July 22, 2022. This was because by then, Justice Mridul's bench was made the “special bench” to hear the connected appeals arising out of FIR 59/2020. Apart from Meeran Haider, the special bench also reserved judgment on bail appeals filed by Khan and Shifa ur Rehman.

However, despite being listed before the special bench, the bail pleas filed by Shadab Ahmed and Athar Khan could not be reserved. One of the reasons for it is that the appeals were filed in November and December of 2022 respectively.

Gulfisha Fatima and Khalid Saifi's bail appeals were filed around the same time and were listed before Justice Mridul's bench on May 11 and May 10, 2022 respectively. After the bench was made a special bench to hear the riots bails, the cases were transferred by the regular roster bench to the special division bench.

The special bench reserved judgment on Gulfisha's appeal on February 13 last year whereas the same was done in Saifi's case on December 12, 2022. However, in Saifi's case, the judgment was reserved again on January 05 last year as an application was moved by him to address arguments on what constitutes the expression “prima facie true” stipulated under Section 43D (5) of UAPA.

Present Status of Bail Pleas

Upon Justice Mridul's transfer, the matters were re-listed before a division bench headed by Justice Suresh Kumar Kait in November last year. The bail pleas have been listed more than 10 times since then.

The six bail pleas, except of Khalid Saifi and Gulfisha Fatima, were listed on July 04 before a division bench comprising of Justice Prathiba M Singh and Justice Amit Sharma. However, they could not be heard due to recusal of Justice Amit Sharma. Upon Justice Sharma's recusal, the court has now listed the batch for hearing before another bench on July 24, subject to orders of the Acting Chief Justice.

The bail pleas of Khalid Saifi and Gulfisha Fatima are also listed for hearing on the same date before a division bench of Justice Suresh Kumar Kait and Justice Manoj Jain. The two matters are part heard.

Section 43D (5) of UAPA requires a Court to deny bail if there are reasonable grounds to believe that the case against the accused is prima facie true.

Lengthy bail hearings in UAPA cases, protracted investigations, adjournments in court hearings and prosecution's strong opposition to the bail often contribute to delays in the bail process.

The eight accused persons in the Delhi riots UAPA case have been in jail for about four years. Questions on personal liberty raise with a delayed trial without even commencement of arguments on charge till date, the delay of the bail appeals filed by the accused persons before the Delhi High Court.

The Supreme Court in its recent verdict granted bail to an accused in the UAPA case while noting similar factors- the accused was in jail as an undertrial prisoner for past four years, trial court was not even able to proceed to frame charge till date and prosecution intended to examine not less than 80 witnesses.

As observed by the Apex Court, Article 21 applies irrespective of the nature of the crime and therefore, delay in bail hearings for years clubbed with delay in trial are factors which should not be brushed aside lightly while adjudicating bail pleas.