Supreme Court Refuses To Entertain Gulfisha Fatima's Article 32 Petition For Bail In Delhi Riots Conspiracy Case, Requests Delhi HC To Hear Bail Plea Soon

The Supreme Court on Monday (November 11) refused to entertain a writ petition filed by Gulfisha Fatima seeking bail in a case under the Unlawful Activities (Prevention) Act 1967 over alleged larger conspiracy behind the 2020 Delhi riots.

The Court however requested the Delhi High Court to hear the bail application on the date fixed, unless there are exceptional circumstances.

A bench of Justices Bela M. Trivedi and Satish Chandra Sharma considered the matter.

As soon as the petition was taken, Justice Trivedi said that a similar writ petition filed by co-accused Sharjeel Imam was disposed of requesting the High Court to decide the bail application soon.

Senior Advocate Kapil Sibal, for the petitioner, stated that there is a different in this matter and the one decided by this bench. He submitted: "This lady (petitioner) has been inside for four years and 7 months. And on 24 dates, the bench was adjourned because the presiding officer was on leave and on other 26 dates, no arguments were heard and matter was simply adjourned. And on two separate dates, arguments heard, order reserved..."

Sibal informed that the next date for hearing in the Delhi High Court is November 25. "I want bail here".

Sibal pressed for bail citing the delay in trial and long incarceration of the petitioner. When the bench suggested the High Court can be requested to hear the matter, Sibal said, "It will again go on...the matter gets adjourned when the board reaches it. What is the point of keeping someone in for 4 years and 7 months in jail? She is a lady, aged 31 years. No question of a trial beginning."

"The matter should heard, there is no doubt about that," Justice Trivedi said while saying that the relief cannot be sought under Article 32 when the statutory remedy was pending.

Sibal then cited the para. 18 of the Supreme Court judgment on K.A. Najeeb which held that the stringent provisions of UAPA (Section 43D(5)) will not prevent the Courts from granting bail if there is undue delay in trial. He read the judgment: "It is clear to us that the presence of statutory restriction of Section 43D(5) of UAPA does not oust the ability of the constitutional courts to grant bail on violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."

However, Justice Sharma pointed out that the said judgment was passed in an appeal challenging the High Court's rejection of bail. "This is coming out of an order of the High Court. So the procedure was followed," Justice Sharma said.

"Can I not file a writ petition? Is it barred? It is 4 years, 7 months. Sibal urged.

"We are requesting them for the first time," Justice Sharma replied. To this, Sibal replied: "It will again not be heard. Then, your Ladyship will say I can't file Article 32 petition. Where will we go?"

Sibal then pressed that a time frame should be fixed for the High Court to decide the matter. He added: "Your Ladyship never says do it expeditiously as possible. Then it will never happen. Either you give two weeks time, we will go and finish with it."

The bench dictated the order as follows :

"We are not inclined to entertain the writ petition under Article 32 of the Constitution. It is stated that the next date fixed before the High Court is 25th November. Since the petitioner is under custody for 4 years and 7 months, it is requested that the bail application may be heard on the date fixed unless there are extraordinary circumstances."

Gulfisha was arrested on April 11, 2020, and was sent to judicial custody thereafter. She was granted bail in FIR No. 50/2020 [PS­ Jafrabad], another case related to the riots. However, on March 16, 2022, she was denied bail along with Tasleem Ahmed in the larger conspiracy case by a Delhi Court by Additional Sessions Judge Amitabh Rawat.

The Court said that are reasonable grounds for believing that accusations against both Tasleem and Gulfisha were prima facie true. Hence, the embargo created by sec. 43D of UAPA applies for a grant of bail, including the embargo contained in Section 437 CrPC.

A bench of Justices Siddharth Mridul and Rajnish Bhatnagar of the Delhi High Court issued notice on May 11, 2022, on Gulfisha's plea challenging the Trial Court's order denying bail. After Justice Mridul was elevated as the Chief Justice of Manipur High Court, a bench of Justices Suresh Kumar Kait and Shailender Kaur were to hear bail pleas from January 2024 onwards. The matter is currently before Justices Navin Chawla and Kaur who are set to hear from November 25 onwards. 

A similar writ petition was filed by co-accused Sharjeel Imam, which was dismissed by the same bench on October 25, urging the Delhi High Court to hear the matter expeditiously. 

Background

Several activists who were in the forefront of organizing anti-CAA protests have been named as accused in the UAPA case over the allegation that they were involved in the larger conspiracy to foment the communal riots which took place in North East Delhi in February 2020.

The FIR contains stringent charges including Sections 13, 16, 17, and 18 of the UAPA, Sections 25 and 27 of the Arms Act and Sections 3 and 4 of the Prevention of Damage to Public Property Act,1984. The accused are also charged under various offences mentioned under the Indian Penal Code, 1860.

In September 2021, the main chargesheet 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, Umar Khalid, Shadab Ahmed, Tasleem Ahmed, Salim Malik, Mohd Salim Khan and Athar Khan.

Thereafter, a supplementary chargesheet was filed in November against former JNU student leader 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.

In June 2021, the Delhi High Court granted bail to Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, prima facie observing that they were merely organising protests, which cannot be regarded as an offence under the UAPA. The Supreme Court dismissed the Delhi Police's petition challenging to that bail order.

Case Details: GULFISHA FATIMA v STATE (GOVT OF NCT OF DELHI) W.P.(Crl.) No. 446/2024

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