[Delhi Riots] Can't Test Veracity Of Witness Statements At Stage Of Bail Under UAPA: High Court While Hearing Umar Khalid's Bail Plea

While hearing student activist Umar Khalid's bail plea in connection with Delhi riots larger conspiracy case, the Delhi High Court on Wednesday orally remarked that it cannot test the veracity of witness statements at the stage of bail under the Unlawful Activities (Prevention) Act, 1967.

A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar was hearing the appeal filed by Umar Khalid challenging the Trial Court's order refusing him bail in the case.

The Bench was responding to the arguments put forth by Senior Advocate Trideep Pais wherein he highlighted various discrepancies in the statements of a protected witness to show that the statements recorded under sec. 161 and 164 of CrPC were at variance with each other.

[Delhi Riots] Umar Khalid In Prison Since 2 Yrs Merely On Basis Of A Hearsay Witness Statement Unrelated To Violence: Argument For Bail In High Court

While Pais relied heavily on the judgment of the Supreme Court in the case titled National Investigation Agency v. Zahoor Ahmad Shah Watali, Justice Mridul orally remarked thus:

"The way we read Watali, is that the court at the stage of bail can only look at material and evidence as stated in chargesheet without testing the veracity. It can be rebutted only at the stage when there is other evidence, which is trial."

Pais was referring to an allegation mentioned in the chargesheet stating that on January 8, 2020, a trio of Tahir Hussain, Umar Khalid and Khalid Saifi met at office of Popular Front of India for conspiring to commit the Delhi riots.

Referring to the statement of the prosecution witness, Pais argued thus:

"A few days before my arrest in that FIR (FIR 101/2020) on 1 October, on 27 September he deposes of the incident saying the three met at PFI office. In May he doesn't remember. In September he does. In this FIR (FIR 59/2020) he gives statement saying he reached the office, no address, no pointing out how it is PFI office, he says Umar Khalid and Khalid Saifi were already there."

"Then he gives another statement one month later, he says he saw these gentlemen walking. Complete variance with each other."

Referring to other similar instances mentioned in the chargesheet, Pais argued that the same reflect that the Prosecution has tried to match the details of the accused persons to allege that they had planned a conspiracy. Furthermore, Pais argued that the cell tower locations also do not link the accused persons with each other.

"It turns out that they weren't even there," he submitted.

He added "Never do they even figure in the same cell tower location at any time so that a meeting could even said to have taken place."

Pais also argued that the incident of meeting of the trio on January 8, 2020 was without any basis as it was not even confirmed that it was the PFI office.

"In one statement he (witness) says i went him and they were sitting there. In another he said while i was waiting outside, they came in. Of course there is contradiction. This incident is without any basis," Pais argued.

To bring home the point, Pais referred to the Watali judgment to argue that the allegations in the chargesheet must be good and sufficient on its face to establish the same.

At the outset, Justice Mridul orally remarked thus:

"What we have discerned from all of this so far is that the three of you met. Why are they saying that three of you met because they are trying to establish a case under sec. 18 of the UAPA, that there was a conspiracy."

Furthermore, Pais argued that the witness statements in question were at variance with each other. To this, the Court said that while there seemed no contradiction as far as the factum of meeting of the trio was concerned, variance was only to the limited extent of the witness stating that he was present inside or outside the office.

Pais also submitted that the chargesheet on its own should make out the offence that it seeks to frame Umar Khalid for, which it fails to do.

"The point is the minute you're referring to, look at the contradiction etc, at the stage of bail, we're not required to test veracity of the statements," Justice Mridul added.

The matter will now be heard on Monday next. 

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.