Court Reserves Order On Khalid Saifi's Bail Plea In Delhi Riots Larger Conspiracy Case

Founder of United Against Hate, Khalid Saifi, seeking bail in relation to the Delhi Riots larger conspiracy case, on Wednesday argued before a Delhi Court that the prosecution is attempting to communalize the narrative against a single community.

Additional Sessions Judge Amitabh Rawat has reserved order in the bail plea moved by Khalif Saifi after hearing Senior Advocate Rebecca John who concluded her rebuttal arguments today.

John argued that the prosecution has largely relied on the chats exchanged on a WhatsApp group between the accused persons. However, she alleged, that the prosecution cannot pick and choose the messages in isolation. She argued that there are multiple narratives that are apparent from the chats, however, the prosecution has read only a few messages in isolation, and instead of a simple reading, is trying to attribute meanings to it.

"Why is prosecution attempting to communalize the narrative? Don't lay the narrative on one community. Don't brush aside the actions of Delhi Police, that too is apparent from reading of this WhatsApp group," John argued.

John referred to the submission made by Special Public Prosecutor Amit Prasad wherein he had argued that the protest against Citizenship Amendment Act was communal and in fact, was not organic in nature thereby calling it a conspiracy of silence.

John argued "So what? Every protest is organized. Even if it wasn't organic, it doesn't help their case."

"The protest was communal? The protest was not communal except that the persons who were against the Bill belonged to a particular community."

John referred to various events, dating back to December 2019, which according to the prosecution showed involvement of Khalid in the overall conspiracy.

Specifically referring to December 10, 2019 where it was alleged that Khalid Saifi attended a protest against the CAA at Jantar Mantar, John argued thus:

"My response is, Jantar Mantar was a protest site opened for public, nothing secretive about it. For times immemorial, people have gone there for airing their grievances."

John further argued that other than the bald statement made in the supplementary chargesheet, there was no evidence to show that Khalid Saifi met Umar Khalid in December 2019 or that Umar Khalid gave him any direction to raise a protest site at Khureji.

Owning that Khalid Saifi was in fact a part of the DPSG group, John referred to various messages involving Khalid Saifi which the prosecution relied upon to raise allegations against him.

Reading one such message sent by Khalid Saifi in the DPSG group saying that the Chief Minister must be held accountable and a protest must be held outside his residence, John argued:

"How this incriminates me beats my reasoning or imagination. I own the message."

"The message only says that the police has not been able to control riots and there should be accountability. Even if I have asked the CM to hold a press conference, that's within my rights as an Indian citizen."

John also argued "I am part of several WhatsApp groups. Many questions are asked. Some are answered some are not. Is this evidence of criminality? Have we forgot the basic law?"

It was also argued that there was no single narrative in DPSG group and that there were multiple narratives and multiple people having multiple grievances including grievances against the Delhi Police and ruling dispensation.

"Either you read it together or don't. But I object to the attempt made by prosecution to take out messages in isolation. In the same chat, there are messages about Delhi Police and Paramilitary force attacking peaceful protestors," John added.

Further reading out a message about the Police breaking public cameras to avoid accountability, John argued that no investigation was made into the said aspect.

"When provisions like Section 14 and 17 of UAPA are alleged, you have to categorize roles which necessitates invocation of UAPA against me. Prosecution can't go on and on about conspiracy," John said.

John submitted that none of the ingredients of 'unlawful activity' as defined under Section 2(o) of UAPA have been shown by the Prosecution.

Section 2(o) defines "unlawful activity" as any action taken an individual or an association, which is intended to bring about the cession of a part of the territory of India; which disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or which causes or is intended to cause disaffection against India.

It was thus argued that none of the offences alleged against Khalid Saifi, punishable under Sections 13 (Committing unlawful activities), 15 (Terrorist Act) and Section 17 (Terror Funding) or 18 (Conspiracy) of UAPA are met.

Reliance was placed on Usmanbhai Dawoodbhai Menon vs State Of Gujarat, where while hearing a case under the TADA Act, the Supreme Court had held that normally, the cases arising out of communal riots have to be dealt with under the ordinary procedure prescribed by the Code. It was also held that before applying special laws like TADA, the designated Courts are under a duty to examine the circumstances attracting the special law.

Thus, John argued that in this case, the Court has to first come to a conclusion that provisions of UAPA have to be applied. That is a threshold that needs to be crossed for invocation of UAPA.

She added that evidence pertaining to conspiracies are often weak as they are hatched in silence. However, there is no 'conspiracy of silence'; cogent evidence has to be shown to establish the same.

Reliance was placed on PK Narayanan v. State Of Kerala where it was held that "an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence."

The FIR against Khalid Saifi contains stringent charges including Sections 13, 16, 17, 18 of the UAPA, Sections 25 and 27 of the Arms Act and Section 3 and 4 of the Prevention of Damage to Public Property Act,1984. He is also charged of various offences mentioned under the Indian Penal Code, 1860.

In September 2020, main chargesheet was filed against Pinjara Tod members and JNU students Devangana Kalita and Natasha Narwal, Jamia Millia Islamia student Asif Iqbal Tanha and student activist Gulfisha Fatima.

Others who were charge-sheeted included former Congress Councilor Ishrat Jahan, Jamia Coordination Committee members Safoora Zargar, Meeran Haider and Shifa-Ur-Rehman, suspended AAP Councilor Tahir Hussain, activist Khalid Saifi, Shadab Ahmed, Tasleem Ahmed, Salim Malik, Mohd Salim Khan and Athar Khan.

Thereafter, a supplementary chargesheet was filed in November against former JNU student leader Umar Khalid and Sharjeel Imam in a case related to the alleged larger conspiracy in the communal violence in northeast Delhi in February.