Supreme Court denies bail to Umar Khalid, Sharjeel Imam

“This exercise does not dismantle the prosecution case of conspiracy, nor does it rank culpability. It nearly ensures that pretrial detention does not become indiscriminate or automatic, and that statutory restraint operates with reason, proportion, and fidelity to individual attribution seen. Thus, differentiation is not an exception to conspiracy law, but a constitutional discipline imposed upon the exercise of jurisdiction accordingly, the material placed on the court and examined in its entirety,” the court said.

The order, therefore, highlighted, “It establishes that Umar Khalid and Sharjeel Imam stand on a qualitatively different footing from the remaining accused, both in prosecution narrative and in evidentiary basis relied upon. This structural distinction cannot be ignored and must inform any judicial determination relating to culpability, parity, or the applicability of penal provisions requiring a heightened threshold of intent and participation.”

Having thus delineated the structural and evidentiary differentiation emerging from the prosecution case itself, it becomes necessary for the court to examine the debate, please, in an accused-specific manner, it added.

“This court is satisfied that the prosecution material taken at face value as required at this stage discloses a prima facie attribution of essential and formative role by the appearance in appeals.. of  Umar Khalid and Sharjeel Imam in the alleged conspiracy. The material suggests involvement at the level of planning, mobilisation and strategic direction, extending beyond episodic or localised acts. This statutory threshold under 40 3D (5)of UAPA, therefore stands attracted qua these appellants,” the order held.

The UAPA provision reads, “Notwithstanding anything contained in the Code, 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.”

“Provided that 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 is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true,” it adds.

Khalid, an activist and a former JNU student, is facing charges of criminal conspiracy under Unlawful Activities (Prevention) Act in connection to the 2020 Delhi riots, which left 53 people dead and hundreds injured. Khalid was arrested in 2020 and since then there have been multiple court hearings till date.

In a hearing before the bench in October, Khalid had argued there are 751 FIRs lodged in connection with the February 2020 Delhi riots but he has been accused in only one FIR while challenging the conspiracy charge against him.

Senior advocate Kapil Sibal, appearing for Khalid, “There are 751 FIRs. I am charged in one. If it’s a conspiracy, it’s a bit surprising — if I am responsible for the riots.”

Sibal further pointed out that Khalid was not present in Delhi when the riots took place and there were no recoveries of any kind of weapons, arms, acid or any incriminating material made from him or at his instance.

“If am not there, how can I be connected?” Sibal asked.

Delhi High Court ruling

The Delhi High Court bail rejection verdict on September 2 had prima facie found that Khalid and Imam were the first ones to act after the Citizenship Amendment Bill was passed in early December 2019, by creating WhatsApp groups and distributing pamphlets in the Muslim populated areas calling for protests and Chakka-Jaams, including the disruption of essential supplies.

The prosecution had argued that Imam and Khalid were the “intellectual architects” behind the entire conspiracy, working in tandem with the other co-conspirators, each of whom played their respective roles in the conspiracy.

“Suffice it is to say that the alleged inflammatory and provocative speeches delivered by the Appellants, when considered in totality, prima facie indicates towards their role in the alleged conspiracy,” it held.

The high court also rejected the claims of the defence counsel who argued that the alleged acts of Khalid and Imam, would at best, fall under Section 13 of the UA(P) Act, that is, Chapter III of the UA(P) Act, but not under Chapter IV of the UA(P) Act, is concerned.

“We may note that this Court, while exercising its appellate jurisdiction in the present proceedings, arising from the refusal to grant bail, is not required nor is it empowered to hold a detailed analysis of the evidence for determining the validity of the accusations levelled against the Appellants,” it added.