SC's Verdict On Validity Of Sedition Law Will Have A Bearing: Delhi High Court Adjourns Bail Pleas Of Umar Khalid & Sharjeel Imam To May 6

The Delhi High Court on Friday adjourned to May 6 hearing in the appeals filed by student activists Umar Khalid and Sharjeel Imam challenging the Trial Court's orders refusing them bail in the Delhi riots larger conspiracy case.

A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar was of the view that since the matter pertaining to the challenge to the constitutional validity of the offence of Sedition under Section 124A of the Indian Penal Code is coming up for hearing before the Supreme Court on May 5, it would be appropriate to await the outcome of the same before hearing the appeals.

It is pertinent to note that earlier this week, the Supreme Court posted to May 5 for final hearing the petitions challenging the constitutional validity of the sedition law. A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli was considering two writ petitions filed by Army veteran Major-General SG Vombatkere (Retired) and the Editors Guild of India respectively.

"Matter regarding sec 124A of IPC is coming before Supreme Court. Findings of sec. 124A will have bearing on this case also," orally remarked Justice Bhatnagar.

While Senior Advocate Trideep Pais appearing for Umar Khalid said that the outcome of the said challenge will not have a bearing on the merits of the matter, Justice Mridul remarked:

"No matter the bearing, we should await the outcome."

At the outset, Advocate Tanveer Ahmed Mir also mentioned a fresh appeal filed by Sharjeel Imam challenging the Trial Court order denying him bail in the UAPA case. Accordingly, the Court said that since Sharjeel is the purported co conspirator as alleged by the prosecution in the FIR, both the appeals will be heard together.

While issuing notice on the appeal of Sharjeel Imam, the Court posted both the matters for further hearing on May 6.

The Court also said that it will also hear another challenge made by Imam to a Trial Court order framing charges against him in a case relating to the alleged inflammatory speeches made by him in Aligarh Muslim University and Jamia area in Delhi against the Citizenship Amendment Act, on May 6 together with the appeals.

Umar Khalid was denied bail by city's Karkardooma Court on March 24. He was arrested on 13 September, 2020 and has been under custody since.

Earlier, Justice Rajnish Bhatnagar had asked Pais if it was proper to use the word 'jumla' against the Prime Minister of India.

"This word jumla is used against the Prime Minister of India. Is it proper?", Justice Bhatnagar had orally asked. Pais had responded that it is not illegal to be critical of the government or polices of the government.

Justice Bhatnagar had also orally remarked thus:

"There has to be a line for criticism also. There has to be a lakshman rekha."

On the previous occasion, the bench, after reading the transcript of the speech, had observed that the speech was prima facie "obnoxious" and "offensive".

Opposing the appeal, the prosecution had earlier told the Court that the "narratives" sought to be created by Khalid cannot be looked into as his defence at the stage of bail.

In the short reply filed, the prosecution had further said that to view Khalid's role in isolation in the case of conspiracy will be impermissible in law.

The prosecution also referred to the trial court orders dismissing bail pleas of co-accused namely Shifa-ur-Rehman and Khalid Saifi to argue that the same would clearly demonstrate the length and breadth of the conspiracy, role played by different entities, WhatsApp Groups and individuals in pursuance to the said conspiracy.

Accordingly, the prosecution had submitted that the appeal raises no good grounds for consideration by the High Court and thus, must be dismissed.

Sharjeel Imam's Challenge To Trial Court Order Denying Him Bail

Additional Sessions Judge Amitabh Rawat was of the view that Khalid had connectivity with many accused persons and that his presence throughout in several WhatsApp groups during the period beginning from the passing of the Citizenship (Amendment) Bill in December 2019 till the February 2020 riots, had to be read in totality and not piecemeal.

On the other contention raised by Pais that Umar Khalid was not present in Delhi during the time of riots, the Court was of the view that in a case of a conspiracy, it is not necessary that every accused should be present at the spot.

Thus, perusing the charge­sheet and accompanying documents, the Court was of the opinion that allegations against the Umar Khalid were prima facie true and hence the bar for grant of bail as per Section 43D of the UAPA was attracted.

The Court noted that Umar Khalid's name finds a recurring mention from the beginning of the conspiracy till the riots. He was a member of WhatsApp groups of Muslim students of JNU. He participated in various meetings. He gave reference to Mr.Donald Trump in his Amaravati speech. He was instrumental in creation of JCC. He was also mentioned in the flurry of calls that happened post-riots.

The Court opined that target was to block roads at mixed population areas and encircle the entire area completely stopping the entry and exit of citizens living there and then creating panic to attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riots and the same would be covered by the definition of terrorist act under Section 15 of the UAPA.

The Case of Umar Khalid before Trial Court

Senior Advocate Trideep Pais had argued that while the protests against Citizenship Amendment Act were secular, it is the chargesheet filed by the Delhi Police which is communal. He had also submitted that while the prosecution pushed on claiming that chakka jam was equal to terror act, Chakka Jam is not an offence and that it has been used by students and others while participating in various agitations.

He added that the statements of 'cooked up witnesses' showed a pattern of 'false implication' in the chargesheet as well as FIR 59/2020. He argued that one of the witness' statements which was recorded three days prior to Umar Khalid's arrest was done in order to "suit the arrest".

What was the Prosecution's case before Trial Court?

Referring to sec. 15 of the UAPA Act which defines a terrorist act, Special Public Prosecutor Amit Prasad had argued that while the riots were meticulously planned, there was destruction of properties, disruption of essential services, use of petrol bombs, lathis, stones etc and therefore meeting the criteria which is required under 15(1)(a)(i),(ii) and (iii) of the Act.

Prasad had added that a total of 53 people died during the riots, 142 people were Injured in first phase of riots and other 608 were injured in the second phase.

He had argued that the 2020 sit-in protests were carefully planned, picking strategic protest sites closer to 25 mosques. He had submitted that these sites were places with religious significance but were purposely given Secular names to give legitimate appearance to the allegedly communal protests.

He had referred to a December 20, 2019 meeting which was attended by Umar Khalid with Harsh Mander, members of United Against Hate, Swatantra Nagrik Sangathan, etc. He had averred that this meeting was key in deciding the areas of protest and strategies to mitigate police clashes by keeping women at the forefront.