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

The Delhi High Court on Friday issued notice on the appeal filed by student activist Umar Khalid challenging the Trial Court's order refusing him bail in the Delhi riots larger conspiracy case.

A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar also 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.

While the counsel appearing for Umar Khalid read the relevant portions from the speech before the Court, Justice Mridul 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?"

On Court's query as to what was Khalid accused of, Senior Advocate Trideep Pais appearing for Umar Khalid argued that he was accused of conspiracy and that he was not even present in the city when the incidents, of which Khalid is accused of, are alleged to have happened.

"Silent whisper. Not present, nothing recovered, no overt act ascribed to me, no money recovered," Pais argued.

At the outset, Pais also told Court that the speech in question was in the context of protest and that it was in that context that Umar Khalid spoke of electoral democracy and rule of law.

"We can say that prima facie this is not acceptable," Justice Mridul orally said.

He added "Everything else may be acceptable within the four corners of democracy and free speech. But is not acceptable."

The Court therefore issued notice on the plea and directed the prosecution to file a short reply within three days. The matter will now be heard on April 27. 

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.

Rejecting the submission made by Senior Advocate Trideep Pais that although Umar Khalid was part of the MSJ and DPSG Whatsapp groups but he had not written many messages in the said groups which were provocative or incriminatory, the Court had observed:

"However, the fact that he was part of such groups created for specific objects and his acts or presence throughout the period beginning from the passing of the CAB Bill in December 2019 till the February 2020 riots, as mentioned above, has to be read in totality and not piecemeal. He has connectivity with many accused persons."

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.

"The contention that accused Umar Khalid is a researcher and his bent of mind can be assessed from his doctoral thesis on Welfare aspects of Adivasis of Jharkhand and other writings is not a relevant consideration while deciding the bail application. If the bent of mind is to be assessed in this manner, then the co-­accused Sharjeel Imam has written thesis on riots but any thesis or research work, by itself, done by any accused cannot be a ground for assessing mens rea or his bent of mind. A bail application must be decided on facts presented in charge­sheet," the Court had observed.

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.

It stated that as per the charge­sheet, taken at face value, there was a "premeditated conspiracy" of the disruptive chakka­jam and a preplanned protest at 23 different planned sites in Delhi which was to escalate to confrontational chakka­jam and incitement to violence and resulting in riots.

Further, there was intentional blocking of roads to cause inconvenience and to cause disruption of the essential services to the life of community residing in North­ East Delhi, causing violence with various means and then leading to February riots.

The violence in February 2020 in North-East Delhi began with firstly choking public roads, attacking policemen and then public and where firearms, acid bottles and instruments were used, resulting in loss of lives and property and this was a result of the conspiracy.

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 weapons used, manner of attack and the destruction caused shows it to be preplanned. Acts which threaten the unity and integrity of India and causes friction in communal harmony and creates terror in any section of the people, by making them feel surrounded resulting in violence, is also a terrorist act," the order read.

The Case of Umar Khalid before Trial Court

Senior Advocate Trideep Pais had argued that the entire chargesheet filed by Delhi Police in FIR 59/2020 is a fabrication and that the case against him is based on the video clips run by Republic TV and News 18 showing a truncated version of his speech.

Refuting the prosecution's allegations, Pais argued that news channels Republic TV and News 18 ran truncated version of a speech delivered by Khalid at Amravati, Maharashtra on February 17 last year.

"Delhi police has nothing but Republic TV and CNN-News18 for the case", the lawyer had submitted.

Pais had alleged that News18 omitted a crucial statement made by Khalid regarding need for unity and harmony from the video telecasted by it.

Pais had also argued that the entire charge-sheet reads like a script of Amazon Prime show 'Family Man', having no evidence to support the allegations, adding that the chargesheet makes rhetorical allegations against Khalid, terming him the "veteran of sedition" without any factual basis. The hyperbolic allegations in the chargesheet "reads like a 9 PM new script of one of those shouting news-channels" and are reflective of the "fertile imagination" of the investigating officer, the lawyer had argued.

Pais had also argued that while the protests against Citizenship Amendment Act were secular, it is the chargesheet filed by the Delhi Police which is communal.

Further, reading out the allegation that the creation of Jamia coordination committee was the brain child of Umar Khalid and Nadeem Khan, Pais had called it a fertile imagination of the IO.

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".

It was argued that the statements recorded by the investigating agency in the matter were nothing but a fabrication, a tenuous material which will not stand the test of law. According to Pais, the said statements of witnesses were grossly inconsistent with each other and that there was no physical evidence to support the same.

What was the Prosecution's case?

Opposing Umar Khalid's bail, the prosecution argued that Khalid wanted to create a perception by referring to web series 'Family Man' and movie 'Trial of Chicago 7' and had nothing to argue on merits of the case.

Special Public Prosecutor Amit Prasad had argued thus:

"…he wants the application to be decided by a reference to a web series. He wants case to be equated as Family Man and Trial of Chicago 7. It's slightly unfortunate. Let us understand why he wants to equate with Family Man or Chicago 7. Because when you have nothing on merits, you want to go and create headlines."

"You create a perception and it is for this reason if we do a google search of the dates of hearings, when law is argued that doesn't get covered. When family man argued then everything gets covered. The idea is to create a perception. You don't want to argue anything on law, but you want to argue on something which is relevant in media."

Prasad had also objected to the argument put forth by Senior Advocate Trideep Pais to say that the Investigation Agency and Investigating Officer was communal.

Referring to sec. 15 of the UAPA Act which defines a terrorist act, 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.

Prasad had also argued that the the issue regarding the protests was not CAA or NRC but to embarrass the Government and to take such steps that it gets highlighted in the International media.

He had said that while Umar Khalida's public perception was to protect the Constitution and waving the Indian flag, his agenda was different.

Main thrust of Prasad's arguments was that the DPSG group was a highly sensitive group wherein every small message was privately deliberated upon and then passed forward to other members. Every decision taken was conscious and well thought over, he had said.

He had submitted that while the case of the prosecution is not that every person who surfaces in the conspiracy has to be made an accused and that merely being silent on a group does not make one an accused, however, he added that in case evidence is found against any person, criminal action has to follow.

In this backdrop, he had argued that there was a 'conspiracy of silence' in committing the 2020 North East Delhi riots, idea behind which was to completely put the system under paralysis.

The FIR against Khalid 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.

Thereafter, the main charge sheet 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 charge-sheet was filed against Umar Khalid and JNU student Sharjeel Imam in a case related to the alleged larger conspiracy in the communal violence in northeast Delhi in February.