Delhi Riots UAPA Case | Umar Khalid Can't Claim Parity With Other Accused Who Got Bail : Police To Supreme Court

The Delhi Police on Monday (November 18) argued before the Supreme Court that Umar Khalid cannot claim parity with Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, the co-accused in the Delhi riots larger conspiracy case, as the 2021 order of the Delhi High Court giving them bail was passed on an incorrect interpretation of the Unlawful Activities (Prevention) Act (UAPA).

Appearing for the Police, Additional Solicitor General SV Raju submitted that the Delhi High Court's 2021 bail judgment in favour of the three correctly held incorrectly that the UAPA applied only to offences concerning the “defence of India”, and therefore the statutory bar on bail under Section 43D(5) was inapplicable.

Raju said that once the High Court concluded that UAPA didn't apply, it wrongly applied Section 439 CrPC instead of Section 437 CrPC, which governs offences punishable with death, life imprisonment, or imprisonment up to seven years.

He added that, on the Delhi Police's challenge, the Supreme Court had declined to cancel the bail of Devangana and others only because the power to cancel bail is narrower than that of rejecting bail. “If bail is granted on a wrong interpretation of judgment or law, there is nothing like parity,” he argued. He also underscored that the Supreme Court had clarified that the bail order cannot be used as a precedent by other accused.

'No Change In Circumstances' For Khalid To File Fresh Bail Plea

Raju submitted that Khalid's first regular bail plea was rejected by the Delhi High Court in October 2022, following which he approached the Supreme Court but later withdrew the petition in February 2024. In the absence of any change in circumstances, he argued, Khalid could not file a fresh bail petition merely on the ground of delay.

"There is one more aspect on the question of parity applying to Umar's case, which will also apply to the merits. The principle is this, you can file successive bail applications - good, no quarrel about it. But you can't file successive bail applications on the same facts. You can file only if there are changed circumstances. Court will not entertain successive bail application if it's not based on a change in material circumstances- it may be those that may or may not have been argued, but it was in existence when the matter was decided...There is no change in circumstances as far as parity is concerned as far as Umar Khalid is concerned." 

 A bench of Justice Aravind Kumar and Justice NV Anjaria is hearing the batch of bail petitions arising from FIR 59/2020 in the Delhi riots conspiracy case. When Justice Kumar asked how the Delhi Police distinguished cases arising from the same FIR when some co-accused had obtained bail, Raju responded that the High Court's view was an erroneous declaration of law, not a factual assessment.

"When the High Court said Section 43D(5) does not apply, the High Court did not say it on facts. The High Court said, interpreting the provisions of UAPA and said it is restricted to defence of India and therefore, the acts of the accused do not fall within the realms of defence of India and therefore, 43D(5) did not apply...Therefore, the Supreme Court said it does not agree and that on law, it was wrong. If Section 43D(5) applied, the High Court would not have granted bail, " Raju averred.

Before the ASG, Solicitor General Tushar Mehta briefly addressed the bench, arguing that the statements reflect a pre-planned conspiracy as to attack the sovereignty of the nation.

The petitioners, who were student activists in the forefront of organising anti-Citizenship Amendment Act protests in 2019-2020, are facing charges under the Unlawful Activities Prevention Act and the Indian Penal Code for allegedly formulating the "larger conspiracy" behind the communal riots which took place in the national capital in the last week of February 2020.