The Delhi High Court Tuesday denied bail to activist Umar Khalid’s in the alleged larger conspiracy behind the 2020 Northeast Delhi riots, holding that it did not find any “merit” in his bail appeal. Khalid, who has been in jail for over two years, had challenged a March 24 order of the trial court which rejected his application for grant of regular bail.
A division bench of Justices Siddharth Mridul and Rajnish Bhatnagar dismissed Khalid’s appeal wherein the Delhi Police had booked him under various provisions of the Unlawful Activities Prevention Act (UAPA) 1967, Prevention of Damage to Public Property Act (PDPP) Act, 1984, and Arms Act in the case.
In a 52-page judgment, the HC upheld the trial court’s finding that the accusations against Khalid are prima facie true, thus, rejecting his bail application.
The HC examined the phraseology used by Khalid in his speeches, holding that a call to revolution may affect many beyond those who were visibly present. Senior Counsel Trideep Pais, appearing for Khalid, while explaining the meaning of “Inquilabli Salam” (revolutionary salute) and “Krantikari Istiqbal” (revolutionary welcome) had said these words were used for greeting everyone and inviting the spirit of revolution and were used in the context of “people standing against a discriminatory law and were protesting against it”. Pais said that by no stretch of imagination can the use of the words ‘inquilab’, ‘krantikari’, or revolution be termed as a crime.
The court referred to Maximilien Robespierre, who was at the vanguard of the French revolution, and observed, “This court is of the view that possibly, if the appellant had referred to Maximilien Robespierre for what he meant by revolution, he must have also known what revolution meant for our freedom fighter and first prime minister. The very fact that Pandit Jawaharlal Nehru believed that democracy has made revolution superfluous after independence and how it meant the complete opposite of a bloodless change.”
The court observed that a “revolution” by itself isn’t always “bloodless” which is why it is contradistinctly used with the prefix – a “bloodless” revolution. “This court is reminded that although the activity of ‘revolution’ in its essential quality may not be different, but from the point of view of Robespierre and Pandit Nehru, in its potentiality and in its effect upon public tranquillity, there can be a vast difference,” it held.
The bench referred to the trial court’s finding that Khalid was a member of a WhatsApp group, Muslim Students of JNU, and had participated in various meetings between December 2019- February 2020. The HC observed that Khalid’s name was recurrently mentioned from the beginning of the conspiracy till culmination of the ensuing riots:
“Different protected witnesses have stated the role of the appellant and other accused persons and about the open discussion on violence, riots, finance and weapons.”
It further observed that if the chargesheet and material collated during investigation are taken at face value, there appears to be a “pre-meditated conspiracy” for causing “disruptive chakka-jam” and “pre-planned protests” at different planned sites in Delhi, which was engineered to escalate to “confrontational chakka-jam” and incitement to violence culminating in riots in natural course on specific dates.
The court further observed that call data record analysis depicts that there had been a flurry of calls post riots amongst the appellant and other co-accused.
On the nature of the protests, the court observed, “The protest planned was ‘not a typical protest’ normal in political culture or democracy but one far more destructive and injurious geared towards extremely grave consequences… The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such pre-mediated plan and as such the same would prima facie be covered by the definition of ‘terrorist act’.”
On what would amount to terrorism, the court was of the view that it is an act done with a view to disturb the even tempo of society, create a sense of fear in minds of a section of society. The court observed that “different roles were ascribed to different people”, including Khalid, in carrying out the said conspiracy including weapons used, manner of attack, and the resultant deaths, destruction caused indicates that it was “pre-planned”.
Acts which threaten the unity and integrity of India and cause friction in communal harmony and creates terror in any section of people by disturbing the social fabric is also a priori a terrorist act, the court noted.
The trial court had looked at statements of numerous witnesses including protected public witnesses given under provisions of Code of Criminal Procedure (Section 161 & 164) which highlighted incriminating material against Khalid. “Thus, the court below has noted that a broad reading of all statements, the role of the accused Umar Khalid in context of conspiracy and riots was apparent… This court is in full agreement with the findings returned by Ld. Sessions judge…,” the high court held.
It further held that the trial court had rightly observed that a finding had to be given on a cumulative reading of statements of all witnesses and other events presented in the chargesheet, even though there were some inconsistencies in statements of some protected witnesses.
The court also said it cannot turn a “blind eye” to other “incriminating material” against Khalid in the present case while observing the clandestine manner in which he delivered his speech at Amravati.
“The fact that there is no denial that on 17.02.2020, the appellant delivered a speech at Amravati, Maharashtra, referring to the visit of Mr Donald Trump, President of the United States of America, which according to the prosecution heralded the riots of Northeast Delhi. The manner in which the administration initially rejected permission for the appellant’s speech and, thereafter, how the speech came to be delivered clandestinely on that very day is something which gives credibility to the accusation of the prosecution,” it said.
The trial court declined regular bail to Khalid based on provisions of Section 43D (5) of UAPA as well as section 437 of the Criminal Procedure Code. Looking at ingredients of both sections, the HC observed that Section 437 of Code of Criminal Procedure where a court should have “reasonable grounds to believe” that the accused has committed an offence to deny him bail is juxtaposed to the power of the court to deny bail under UAPA if the accusation appears to be “prima facie true.”
Dismissing his appeal, the HC held that the order of the Additional Sessions Judge does not warrant any interference and is sustained. The court, however, held that nothing stated in the verdict shall amount to “an expression of any opinion on the merits of the case”.