[Delhi Riots] Umar Khalid's Membership Of WhatsApp Groups Can't Make Him Criminally Liable: Argument For Bail Before Delhi High Court

The Delhi High Court on Thursday continued hearing the appeal filed by student activist Umar Khalid challenging the Trial Court's order refusing him bail in case involving UAPA charges alleging a larger conspiracy in the riots of 2020.

Senior Advocate Trideep Pais appearing for Umar Khalid, told a special bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar that mere membership of WhatsApp groups, as alleged by the prosecution, cannot make Khalid criminally liable when nothing objectionable was attributed to him.

While the prosecution has claimed that Umar Khalid was part of five WhatsApp groups, Pais submitted that Khalid had remained silent in two such groups. Regarding the remaining three groups, Pais submitted that only four messages were sent in the entirety of WhatsApp chats attributed against him, in which there was neither any incitement nor call for violence.

"The fact that I was part of two WhatsApp groups, out of five cited against me in which I remained silent, cannot make me criminally liable. I am not saying there was anything criminal in those groups," Pais argued.

He added "I am not an administrator, I am merely member of the group. Admins are someone else. Nothing else objectionable is attributed to me. If someone else has said something, that can't be put at my door."

To support the submission, Pais referred to a Madras High Court judgment in the case of R Rajendran v. Inspector of Police wherein it was observed that a group administrator has limited power of removing a member of the group or adding other members of the group and that once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members to the group.

Furthermore, Pais argued that neither was any violence attributed to any speech made by Umar Khalid, nor there was any recovery of any connection of his speech with violence.

Referring to the witnesses statements recorded by the prosecution, Pais said that most of the statements against Umar Khalid were hearsay and recorded much after the events, in proximity to his arrest.

"If at all there is evidence which claims there was any kind of advocacy or incitement on my part, I don't even concede to that, that is only in form of belated statements," Pais argued.

As Pais concluded his submissions today, the Court posted the matter for hearing on August 1 when Special Public Prosecutor Amit Prasad will commence submissions.

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.