‘Allegations prima facie true, UAPA bail bar still applicable’: Court denies bail to three accused in 2020 Delhi riots larger conspiracy case

Following the SC judgment, three of the seven lodged in jail had moved bail pleas before Additional Sessions Judge (ASJ) Sameer Bajpai of the Karkardooma court, seeking parity with those who were placed in the second category by the apex court.

While ASJ Bajpai took note of the SC judgement, he also stated that the trial court and the Delhi High Court had already dismissed the bail pleas of the accused and that the “embargo” of Section 43D (5) of the Unlawful Activities (Prevention) Act UAPA was still applicable.

Section 43D (5) reads: “…no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity of being heard on the application for such release… such accused person shall not be released on bail or on his own bond if the court, on a perusal of the case diary or the report made under Section 173 of the Code (CrPC), is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

Section 173 of the Code of Criminal Procedure (CrPC) refers to the completion of investigation and submission of the final report (chargesheet) by the police to a magistrate.

“…this court in its previous order dated 12.10.2022 has given clear opinion that the accusations against Athar Khan are prima facie true and as such the embargo created by Section 43D(5) of UAPA applies. Thus, when the court has formed a certain opinion against the applicant, it cannot review its order and give any opinion contrary to the previous opinion,” said ASJ Bajpai.

Similar observations were made while denying the bail pleas of Hussain and Malik.

The case against Hussain pertains to allegations that the terrace of his building was used by rioters to pelt stones and petrol bombs. He was called a key local player by the Delhi Police Special Cell with considerable mass support who aided the “conspiracy”. As per the Special Cell, money provided by Hussain was also used to manage protest sites. Further, Hussain has been accused in a murder case of an Intelligence Bureau (IB) staffer during the riots.

On the other hand, Khan was accused of being one of the main organisers at the Chand Bagh protest site and allegedly delivering inflammatory speeches. He also allegedly coordinated the destruction of CCTV cameras to destroy evidence.

According to the Special Cell, Malik attended a meeting with the “conspirators” on February 22, 2020, at Chand Bagh, and delivered “provocative” speeches from the stage at the protest site. He was also allegedly responsible for managing meals and handling financial transactions at protest sites.

While Umar Khalid, Khalid Saifi, Sharjeel Imam, Tahir Hussain, Salim Malik, Athar Khan and Tasleem Ahmed remain in jail in the case, 11 others have been granted bail. They are Meeran Haider, Gulfisha Fatima, Shifa-ur-Rehman, Shadab Ahmed, Mohd Saleem Khan, Devangana Kalita, Natasha Narwal, Ishrat Jahan, Faizan Khan, Safoora Zargar and Asif Iqbal Tanha.

The “larger conspiracy” in the case, as per the prosecution, was the alleged creation of 23 protest sites, which operated 24×7 in “Muslim majority areas”, close to mosques and main roads. According to police, the 18 accused wanted to “escalate” the protest to a chakka jam “once critical mass is generated” when then US President Donald Trump visited Delhi in 2020.