Umar Khalid's Bail Rightly Rejected By Trial Court, Narratives Sought To Be Created Can't Be Looked Into As Defence During Bail: Prosecution To High Court

Opposing the appeal filed by student activist Umar Khalid challenging the Trial Court's order refusing him bail in the Delhi riots larger conspiracy case, the prosecution has told the Delhi High 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 has further said that to view Khalid's role in isolation in the case of conspiracy will be impermissible in law.

"The Appellant before the Ld. Trial Court raised ipse dixit arguments seeking to conduct a mini trial at the stage of deciding the bail application and to view the Appellant's role in isolation in the case of conspiracy which is impermissible in law. The Ld. Trial Court, vide the impugned order, rightly dismissed the bail application of the Appellant by a well-reasoned order dealing with each and every speculative arguments raised by the Appellant. At the cost of repetition, it is humbly submitted that the impugned Order suffers from no illegality which merits interference by this Hon'ble Court," the reply reads.

The prosecution has 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.

"It is humbly submitted that at the stage of bail, the narratives sought to be created by the Appellant cannot be looked into as his defence," the reply reads.

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

Last week, while issuing notice in the appeal, a division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar said that the speech delivered by Umar Khalid at Amravati, which finds mention in the FIR in question, was obnoxious, hateful, offensive and prima facie not acceptable.

Umar Khalid's Speech Prima Facie Not Acceptable, Obnoxious: Delhi High Court While Issuing Notice On Bail Plea

Justice Mridul had orally remarked thus:

"All this is offensive and obnoxious. Don't you think these expressions used are offensive to people? These are offensive per se. It's almost as if we get an impression that only one community fought for India's independence."

He added "Did Gandhiji ever employ this language? Did Shaheed Bhagat Singh ever employ such language? We have no qualms about permitting free speech but what are you saying?"

"Does it not attract sec. 153A or 153B of Indian Penal Code?"

The matter is scheduled to be heard tomorrow next.

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.

About the Trial Court Order

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?

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.