"No Offences Under UAPA Disclosed": Delhi High Court Grants Bail To An Accused In Delhi Riot Case

A Single-Judge Bench of Justice Suresh Kumar Kait heard the matter and noted that the onerous conditions/embargo under Section 43D(5) of the UAPA would not be applicable in the present case as per the material on record and that the investigating agency's status report did not disclose the commission of offences under UAPA, except for bald statements of the witnesses.

Bail in the matter was being sought in pursuance to an FIR registered for offences punishable under Sections 147, 148, 149, 120B of the Indian Penal Code. In order to oppose the application, the State had filed a status report on 6^th March, 2020.

In the aforementioned status report, it was claimed that the Crime Branch had received information which stated that the communal riots of February 2020 in Delhi were "pre-planned and the same were hatched by one Umar Khalid, a student of JNU and his associates and that all linked with different-2 groups".

Violence was initiated in the garb of anti-CAA protests which lead to loss of lives and destruction of public property in North-East Delhi area between February 24-24, 2020. On the basis of facts revealed during the investigation, Sections 302/307/124A/153A/186/353/395/427/435/436/452/454/109/114 read with 120B of Indian Penal Code, Sections 3 and 4 of Prevention of Damage of Public Property Act, and Sections 25/27 of Arms Act were added in the present case.

On 19.04.2020, Sections 13/16/17/18 of UAPA were added. On 04.06.2020, Section 341 of IPC was added, and on 26.07.2020, Section 201 was added, while on 29.07.2020, Sections 420/468/471 of IPC were added.

The status report alleges that the accused Faizan Khan and co-accused Asif Iqbal Tanha were "acting in connivance with each other" and "in furtherance of a pre-conceived criminal conspiracy hatched with the other co-accused knowingly facilitated the commissioning of unlawful and terrorist act".

It is further stated in the report that the mobile phones of the accused persons were sent to CERT-IN for analysis and it was revealed that different WhatsApp groups were formed for coordination and passing of directions regarding mobilization of people at locations of CAA protest sites which lead to riots.

Statements of witnesses and evidences collected were utilized for the adding of the aforementioned sections against the Petitioner in the instant matter.

ASG SV Raju argued that the evidence collected showed that the Petitioner, in furtherance of criminal conspiracy with the co-accused deliberately issued the SIM card which was used to mobilise Muslims which led to chakka jam and riots at various protest sites in Delhi. Further, it was stated that the Petitioner was well aware of the conspiracy of riots since its inception.

It was further submitted by Raju that the chargesheet had been filed against the 15 accused on 16.09.2020, however, none of them had been released on bail except for Safoora Zargar on humanitarian grounds. Investigation against six accused, including the Petitioner was pending and out of the 6, three had been released on bail.

Raju also contended that the statements recorded under Section 161 and 164 of CrPC revealed that there was a deep-rooted conspiracy to disrupt the normal activity in Delhi and this was systematically carried out by certain indviduals who were specialized in "camouflaging violent protests as seemingly non-violent protests".

"In view of the evidences gathered by the investigating agency read with the presumption of commissioning of offence as provided under Section 14-E of UAPA, there exist no ground to grant bail to the Petitioner", submitted Raju.

Senior Advocate Salman Khurshid appeared on behalf of the Petitioner and submitted that the investigating agency had "misapplied and wrongly invoked" UAPA and that there was neither any allegation that the Petitioner had indulged in any terrorist act nor was there any material that remotely showed that Petitioner had funded any terror activity. Therefore, invocation of UAPA was a gross abuse to deprive the Petitioner of his personal liberty.

It was also submitted that there was no material to show that there was no requisite intention on behalf of the Petitioner and the case of the investigating agency was that the SIM card was provided by the Petitioner on allurement of money, but not for any other objective.

"Therefore, the invocation of the UAPA, 1967 is disproportionate and there is no material to satisfy the basic ingredients provided under the UAPA, 1967".

Justice Kait, after hearing the arguments and going through the material available on record, observed that it was not the case of the investigating agency that the Petitioner was a part of the WhatsApp groups which were made to organize protests against CAA and that there was no allegation against the Petitioner that he had engaged in terror funding or any other ancillary activity.

The Court also noted that there was no proximate nexus between the incidents alleged by the investigating agency and it had also not been alleged that the Petitioner was privy or party to organizing protests against CAA, 2019.

It was observed that the case of the investigation agency was that the SIM Card had been provided on the allurement of extra money. Referring to the 1994 Kartar Singh case, the Judge noted that for invoking UAPA, it was the duty of the agency to demonstrate that the Petitioner had "actual knowledge" that the said SIM would be used for organizing protests.

"It was imperative for the investigation agency to demonstrate that the Petitioner had 'active knowledge' about the utilization of the said SIM card. It is not alleged that the petitioner was party to any such conspiracy to organize protests".

The Court also noted that the Petitioner had voluntarily appeared before the agency for questioning and did not evade or flee between the periods of registration of the FIR and the date of his arrest, which showed that he had fully cooperated with the probe and made himself available as when directed by the agency.

The Court stated that the embargo for bail under Section 43D(5) of UAPA would not be attracted in the instant case as the status report of Delhi Police itself did not disclose the commission of any offences under UAPA, except for bald statements of witnesses.

"It is pertinent to mention here that the onerous conditions/embargo under Section 43D(5) of the UAPA, 1967 will not be applicable in the present case qua the Petitioner herein as per the material on record and the investigating agency's own status report, which does not disclose the commission of the offences under the UAPA, 1967, except bald statements of the witnesses".

It was also recorded that there was no proof such as CCTV footage, video or chats, except for the allegation that he had provided a SIM card on a fake ID in December 2019.

Accordingly, without commenting on the merits of the case, the High Court observed that it was of the view that the Petitioner deserved bail.

In light of the above, the Delhi High Court directed for Khan to be released on bail after furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the Trial Court.

Khan has been directed to not directly or indirectly influence any witnesses or tamper with the evidence. The Trial Court has been directed to not get influenced by the observations made by the High Court.

Senior Advocate Salman Khurshid, along with Advocates Azra Rehman, Aadil Singh Boparai and Ragini Nayak appeared on behalf of the Petitioner.

ASG SV Raju with SPPs Amit Mahajan, Rajat Nair and Advocates Shantnu Sharma, A. Venkatesh, Guntur Pramod Kumar, Dhruv Pandey, Sairica Raju and Shaurya R. Rai appeared on behalf of the Respondent.