Delhi Riots: Delhi High Court's 10 Reasons For Denying Bail To Umar Khalid In UAPA Case

The Delhi High Court on Tuesday denied bail to activist Umar Khalid, who has been in custody since September 2020 in the larger conspiracy case of 2020 North-East Delhi riots.

The FIR 59/2020 being probed by Delhi Police's Special Cell invokes various charges under different provisions of Indian Penal Code as well as the stringent Unlawful Activities (Prevention) Act 1967 against the accused persons.

A division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar upheld the trial court order which had denied bail to Khalid on March 24, observing that it did not warrant any interference.

Here are the 10 reasons given by Delhi High Court in its order denying bail to Umar Khalid:

1. Umar Khalid's name finds 'Recurring Mention' in conspiracy behind Delhi Riots

In its order running into 52 pages, the High Court observed that Umar Khalid's name finds a recurring mention from the beginning of the conspiracy behind the 2020 protests till the culmination of ensuing riots.

The court also noted that Khalid was a member of WhatsApp groups like DPSG and Muslim students of JNU and had also participated in various meetings, wherein the alleged conspiracy to commit the riots took place.

2. Umar Khalid was part of "Conspiratorial Meetings" from December 2019 to February 2020

The court also observed that Khalid was a part of various conspiratorial meetings that took place in the national capital from December 2019 to February 2020. The meetings were alleged to have taken place at Jantar Mantar, Jangpura Office, Shaheen Bagh, Seelampur, Jaffrabad and Indian Social Institute on various dates.

These protests & riots prima-facie "seem to be orchestrated" at the conspiratorial meetings held from December, 2019 till February, 2020, the court said.

3. Protests Pre-meditated, 'Not a Typical Protest'

The court was of the view that if the chargesheet and material collected during investigation is taken at face value, there was a premeditated conspiracy for causing disruptive chakka-jam and pre-planned protests at different sites in the national capital.

It observed that the said premeditated plan was engineered to "escalate to confrontational chakka-jam and incitement to violence and culminate in riots in natural course on specific dates."

"The protest planned was "not a typical protest" normal in political culture or democracy but one far more destructive and injurious, geared towards extremely grave consequences," the bench said.

Furthermore, it was also observed that the attack on police personnel during the riots by "women protestors in front only followed by other ordinary people and engulfing the area into a riot" is the "epitome of a pre-mediated plan" and would prima facie be covered by the definition of 'terrorist act' under Unlawful Activities (Prevention) Act.

"Thus, as per the pre-meditated plan there was an intentional blocking of roads to cause inconvenience and disruption of the essential services to the life of community residing in North-East Delhi, creating thereby panic and an alarming sense of insecurity," the court said.

4. Allegations against Umar Khalid Prima Facie True

The bench further concluded that the allegations against Khalid were prima facie true, clarifying that the observation was only for the limited purpose of the bail.

Khalid said the embargo created by Section 43D(5) of UAPA applies in the case.

The court said that the term "prima facie" would mean that the accusation against the accused at first impression has to be true to invite the embargo of Section 43D (5). Furthermore, it said that the accusation must be good and sufficient on its face to establish a fact or the chain of facts constituting the alleged offence, unless rebutted or contradicted.

"In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is "prima facie true‟, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the Unlawful Activities (Prevention) Act 1967," the bench held.

5. Umar Khalid's Amravati Speech and Krantikari Salam

During the hearing of Khalid's bail appeal in May, Khalid was questioned by the judges for his Amravati speech of February 2020 and more particularly the words used in reference to Prime Minister Narendra Modi by him.

He was particularly asked about the use of terms "inquilabli salam" (revolutionary salute) and "krantikari istiqbal" (revolutionary welcome) at the beginning of his speech, which he had used as a greeting to invite the spirit of revolution.

His counsel had argued that revolution can be non-violent also, and submitted there was no immediate violence after his speech.

Denying him bail, the court said it was not impressed by the argument as the call to revolution does not have to affect only the immediate gathering. It also observed that the revolution by itself isn't always bloodless and that is why a prefix - bloodless, is used with the term 'bloodless revolution'.

"This court is reminded of that although, the activity of 'revolution' in its essential quality may not be different but from the point of view of Robespierre and Pandit Nehru, in its potentiality and in its effect upon public tranquillity there can be a vast difference," the court said.

The court was of the view that it cannot turn its blind eye to the incriminating materials against Umar Khalid, noting his speech referred to the visit of then-US President Donald Trump, which according to the prosecution heralded the 2020 riots.

6. Umar Khalid's presence and involvement in protests

Taking note of the CDR (call data records) analysis, the court also said that there had been a flurry of calls that happened before the riots between Khalid and other co-accused persons.

It was also observed that the cumulative statement of the protected witnesses indicated Khalid's presence and active involvement in the protests against the CAA and NRC.

"The CDR analysis are a matter of evidence which can be seen at the time of Trial and its veracity can be verified only after cross-examination. This court could very well examine this CDR analysis on a prima-facie basis, provided the accusation of the Appellant was limited to the aforesaid facts only, which is not the case herein. Admittedly the accusations are much beyond the said dates and meetings," the court said.

7. Commonality between Accused Persons

The court also rejected the argument that there was no ideological meeting of minds between Umar Khalid and co-accused Sharjeel Imam. It also observed that there exists a string of commonality among all the accused.

"It is admitted position that both the appellant and Imam are members of the same WhatsApp group. It is also an admitted position that the duo participated in the Jantar Mantar protest. There is statement of various protected witnesses, that speak to the presence of the duo at several meetings including in the one held at the office of PFI," the court said.

8. Statements of Witnesses Have To Be taken at Face Value

The court observed that at the stage of bail, the statements of all the witnesses have to be taken at face value and their veracity can be tested only at the time of cross-examination during trial.

Pais had argued that the statements of witnesses are either false, being delayed or contradictory or could be concocted or coerced and should not be relied upon.

9. Acts preparatory to commission of terrorist acts are punishable under Section 18 of UAPA

Section 15 of the UAPA defines a terrorist act whereas section 18 provides for the punishment for conspiracy of the commission of a terrorist act.

The bench was of the view that under UAPA, it is not just the intent to threaten unity and integrity but also likelihood of the same which is covered under Section 15, which defines a terrorist act.

The court also said that the provision includes "not just the intent to strike terror but the likelihood to strike terror; not just the use of firearms but the use of any means of whatsoever nature, not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, that constitutes a terrorist act."

It was also observed that under Section 18, not merely conspiracy to commit a terrorist act but an attempt to commit or advocating the commission or advising it or inciting or directing or knowingly facilitating commission of a terrorist act is also punishable.

"In fact, even acts preparatory to commission of terrorist acts are punishable under Section 18 of UAPA. Thus, the objection of the appellant that a case is not made-out under UAPA is based on assessing the degree of sufficiency and credibility of evidence not the absence of its existence but the extent of its applicability; but such objection of the appellant is outside the scope and ambit of section 43D(5) of the UAPA," the court said.

10. Trial Court order warrants no interference

Upholding the trial court order denying bail to Khalid, the High Court said that the lower court rightly held that a finding has to be given on a cumulative reading of statements of all the witnesses and other events presented in the chargesheet, even though there were inconsistencies in the statements of some protected witnesses.

"The Ld. Sessions Judge didn't miss the wood for the trees and has extensively dealt with the contention of the rival parties to arrive at a just decision, which cannot be faulted, especially when at the stage of bail, the Ld. Judge was mandated to only be satisfied to the extent of accusation being "prima-facie true" and not conduct a 'Mini Trial' and return an elaborate findings relating to the veracity of the testimony of each witness, whose statements were recorded during investigation," the court said.

The bench also observed that under UAPA, it is not just the intent to threaten unity and integrity but also likelihood of the same which is covered under Section 15, which defines a terrorist act.

Khalid had moved High Court after he was denied bail by the Karkardooma Court on March 24. He was arrested on 13 September, 2020 and has been in custody for 765 days.

In the bail appeal, Khalid's counsel Senior Advocate Trideep Pais started arguments on April 22 and concluded on July 28. The prosecution represented by Special Public Prosecutor Amit Prasad began arguments on August 1 and concluded on September 07.

Read Live Law's Coverage on the bail order here:

Umar Khalid's Name Finds A Recurring Mention In Conspiracy Behind Delhi Riots, Protests Were Geared Towards Grave Consequences: Delhi High Court

In Umar Khalid Bail Order, Delhi High Court Invokes Maximilien Robespierre, Pandit Nehru To Explain 'Revolution'

[Delhi Riots] Attack on Police Personnel by 'Women Protestors In Front', Area Engulfed In Riot is Epitome Of Premeditated Plan: Delhi High Court

'String Of Commonality': Delhi High Court Rejects Argument On Ideological Differences Between Umar Khalid, Sharjeel Imam

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