Umar Khalid, Sharjeel, Gulfisha Fatima Bail : Live Updates From Supreme Court Hearing | Delhi Riots UAPA Case

Agarwal: the question comes down to the fact that you have spent 5 years in actual custody for an offence which you are yet to be charged and trial is yet to commence, is this a trial that will finish?

As far as I am concerned, I have to argue for one day. Whenever that will come, i will argue. There are multiple instances were arguments have not been addressed, 8 times and there are multiple times when it has been addressed.

on parity, the State said that HC judgment granting bail to those three did not deal with merits. Its a factually wrong. I will end by saying, neither by speeches or acts would indicate that it is so overwhelming that it denies me the bail.

Sr Adv Siddharth Luthra, Shadab Ahmed: CDR shows I was not there and later after one year, they changed the stance.

Advocate Gautam Khazanchi for Mohd Saleem will continue post lunch.

Khurshid: where the line is to be drawn, we have to be careful. The civil disobedience means defiance of law.

J Kumar: I was reading [baisakhi protest which led to General Dyer shooting point blank]

Khurshid: I have written something on conspiracy theory.

concludes.

Sr Adv Siddharth Agarwal for Meeran Haider: the tenor of my submission, that in order to look at merits, I have placed submissions and brief reply. I will begin by taking to that. i will confine to two things- is the delay attributable to anyone of us and parity is the other which will indicate whether what the State is submitting should be gone into.

there are conspiratorial meeting- allegation was I have attended. Dec 2019 Jangpura and 13 Dec, Jamia attributable to Jamia- the petitioner was not in delhi due to the death of his mother. Please see the counter and the photograph. I am not even there.

Today, I ask myself what did the State say in answer? Nothing. I have spent 6 years for being involved in two meetings when my case is that I was not even in the city because my mother had passed away.

For 6 years, we are in custody and awaiting the onset of trial is an admitting position. The one thing available to the court would be how the HC has analysed this. Please come to the impugned judgment- However, the grant of bail on the sole ground of long incarceration and delay in trial is not a universally applicable rule in all the cases. The discretion to grant or deny bail vests with the Constitutional Court, depending upon the peculiar facts and circumstances of each of the case. The Supreme Court in Sheikh Javed Iqbal (supra), also noted that “in the given facts of a particular case, a constitutional court may decline to grant bail”. Further, the interest and safety of the society at large, apart from the victims and their families, is also a factor to be taken into consideration by the Courts while adjudicating bail applications.

In such a background, the pace of the trial will progress naturally. A hurried trial would also be detrimental to the rights of both the Appellants and the State. The parties have informed this Court that the trial is currently at the stage of hearing arguments on the framing of charges, thus, it indicates that the case is progressing- the case of rhe State was not that the five or six people are responsible for delay, the case was the trial is so big and it will take time. 2 September is the date of judgment. It is nobody's case that the last three months delay is attributable to the accused.

6 March 2020 is when FIR is registered. Multiple chargesheet came to be filed, last is June 2023. Period of 3 years. September 2023 was when arguments on charge began. 18 Sep, 2023, petitioners submitted that it should be deferred because prosecution must first take a stand whether investigation is complete or not. There is a sequential process and investigation must be completed for the court to apply mind. When learned judge asked them, they answered in affirmative only in September 2024. This delay they attribute to the petitioner. If I am insisting on due process, I am doing nothing wrong and that delay cant be at my door.

Assume I did, but when did it commence? 1 Oct 2024. So let us now exclude this one year. September 2023-2024 is attributable to them.

Khurshid: direct evidence of conspiracy is not possible and therefore from events it has to be considered that it as happened. But to assume that there is agreement, and when you are looking for overt act, but since there is conspiracy, this is not needed. Therefore, to what extent has there been a conspiracy to take acts within its ambit?

As per the learned SPP, the money so received was to be used to aid riots and to support their fight against CAA/NRC, so much so that as per prosecution, Appellant Shifa-Ur-Rehman had also generated fake bills of expenses to adjust money used in furtherance of the alleged conspiracy.

In our view, the possibility of misuse of position by the Appellant Shifa-Ur-Rehman, being the President of AAJMI, cannot be ruled out at this stage. More so, when certain bills were allegedly recovered by the prosecution from the AAJMI‟s office. It is further alleged that the said organization had received a total amount of Rs. 7–8 lakhs in cash. The Appellants are stated to have been in charge of more than eight protest sites in Delhi NCR.

Worst allegation is 8 lakh, but no recovery or evidence. Saying that this money is to be looked after the protest site- protest is a part of democracy, i must submit that it is not illegal. There is no FIR against the allegation in Jamia. Of course, the allegation is that the police barged first and there was a reaction. Only allegation that he used 8 lakh but no proof.

See how parity is dismissed summarily by the High Court. [What Delhi HC said: On the plea of parity as raised by the Appellants, we are of the view that the position and role of the present Appellants in the alleged conspiracy is placed differently than the co-accused persons in the entire sequence of events, allegedly being one of the fund raisers in the conspiracy, that would warrant the benefit of parity to be extended to them]

Mylords may look at the short rebuttal note and I have put my address. I have also mentioned that I am not responsible for delay and I completed my arguments on charge on single day, we didn't delay on S. 207 CrPC, no previous background on antecedents. But I have admitted that I have sympathy for the protest movement. 22. Feb, there is some meeting but AAJMI members were there and my name is not there.

I have argued that two dimensions must be considered that mens rea but be there and causation must be there. I am simply saying I have said nothing but money is collected and used for what? Allegation is that it was used for the protestors to cover themselves because of the bad weather and I have given the history of protest that this is something we all have done.

Sr Adv Salman Khurshid for Shifa Ur Rehman: Shifa in urdu means something to heal. Here, he is seeking a remedy for himself. I will begin with one judgment. On conspiracy- Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.

Privacy and secrecy are more characteristics of conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.

As note above, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120 B read with the proviso to sub-section (2) of Section 120 A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120 B and the proof of any overt act by the accused or by any one of them would not be necessary.

The provisions, in such a situation, do not require that each and every person who is party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, to commit the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in section 120 B

Dave: speech is in Aligarh, prosecution in Aligarh and speech is in Delhi, I am prosecuted in Delhi

J Kumar: speech was circulated in Delhi which instigated the delhi riots

Dave: some are members of whatsapp group where chats are there for organising, there are some present in physical meetings and the role ascribed to me is only those speeches. 750 riots FIR, I could not have been prosecuted for those FIRs because I am not there so the only thing present is the inflammatory speeches. But is the speech conspiratorial in itself? He says you all have to take the beatings. Assuming the speeches are being prosecuted, and S. 15 is not invoked, and here it is invoked only for conspiracy? I have shown in counter affidavit that they have failed to instigate and then whatsapp group is formed.

After it moved to next phase, I am not even there. If that is a conspiracy, should be some offence which takes place. Today, at the end of the day, if 6 years as undertrial having suffered long incarceration, if trials are still going on, I am only asking for bail at the end of the day. If I am to be released on bail, whatever the conditions I will be duty bound to follow.

I will end by saying- Faiz Ahmed Faiz when he was in custody in Pakistan- Dil na umeed to nahi, nakaam hi to hai, lambi hai gham ki shaam, magar shaam hi to hai"

Dave: Offences which really threatened the sovereignty and integrity it is entrusted to the NIA. The moment FIR is registered, it has to be forwarded to the State Government. When blast happened near Red Fort, NIA moved to investigate it. No decision by central government to say its a grave offence and should be investigated by NIA.

There are persons who participated, those physically present, those part of whatsapp chat, and meetings, they have been granted bail.

J Kumar asks Dave to read the Aligarh speech.

Dave: that is objectionable, I don't defend. I will also show the good thing.

J Kumar: we will hear the good thing first.

speech is being played- Imam explains the difference between constitutionality and Constitution. He says constitutionality suggests we should not destroy public properties etc, he also says whatever we will do, we will do it in the presence of cameras. He also says we will not pick up stones, weapons but we will do chakka jam.

Dave: for everything, I am already prosecuted and in custody and now State wants to argue that my speeches are conspiratorial. State has laboured how my speeches are so egregious that it threaten the sovereignty and integrity of India that S. 15 is invoked.

Primary agency is NIA and they have the first right to refusal to investigate of UAPA. Under S. 6, the mandatory duty of police officer registering scheduled offence is to give information to State Government which passes to Central Gov and then decides on gravity of offence, whether NIA will investigate or not. When S. 13 is invoked, NIA is not handed over.

Dave: its a call for non-violence and if it turns non-violence, please don't turn it violent because it will be hijacked by political parties. I leave delhi and I am not in delhi, and till when I am arrested from hometown, I am not there.

J Kumar: what is that 16 Jan speech?

Dave: Aligarh speech. For this speech, Allahabad HC grants me bail and its not that it has been challenged. I am not saying that in Delhi, there will be riots. I am labouring and repeating, please eschewing the speeches from considering that something more. Aligarh seems to be the major one-FIR 22/2020, and one Manipur, Uttar Pradesh, Arunachal Pradesh and Delhi. So many prosecution for one speech. Now, conspiracy for riots.

Asansol- there is a legislation and he is entitled to make protest. Some of the speeches are unpalatable, I will not defend. I am frankly submitting that should not have done it, despite the instructions. Mylords be kindly consider that he be enlarged on bail as he was not physically present. Speech conspiratorial may not come and conspiracy has to be two or more and he is giving speech alone.

'chaar hafte' is that he has four weeks before the matter comes before the Court.

J Kumar: 22.1, you submit that it resulted in chakka jam and riots

Dave: its only chakka jam and not riots

Dave: [reads the allahabad HC's bail order] Having heard learned counsel for the parties and having perused the record, without referring to the exact allegation made against the applicant, it may be noted that on an undisputed basis neither the applicant called any one to bear arms nor any violence was incited as a result of the speech delivered by the applicant. The exact imputations made and the effect prompted by the applicant by words uttered or gestures made etc. may remain to be examined at the trial which is yet to commence . Inasmuch as the applicant has remained confined for more than one year and two months against a maximum punishment that he may suffer on conviction being three years, for that reason alone the applicant has become entitled to bail, at this stage, in the undisputed facts of this case.

Where I gave the speech, i am enlarged in bail. Please also consider that the bail which dismissed by bail by the trial court in FIR 22/2020, there are some observations- "although the application did not ask anyone to bear weapons, the speech incited people..."- this was the ground on which was denied after holding that there was no call to take weapons or kill anyone- i am being prosecuted not once, thrice but hexa and on speeches, I am on bail.

Refers to the order where bail is granted- High Court notes that the trial court got persuaded by the enormity of the allegations and proceeded to grant bail. It notes that nothing will restrict him to take relief under 436A CrPC.

There is something I have to show since much has been said about inciting violence. Sharjeel Imam under the tutelage of top conspirators Umar Khalid conspired to escalate the scale of riots. The conspiracy physically manifested itself in the second phase of Delhi riots, this would be established on the following Facebook post- refers to the post.

Counsel for Khalid: the petitioner has moved for interim bail for sister's wedding in 2.3 [Umar Khalid]. He had in the past moved such application and it was allowed.

Dave: I had mentioned about FIR 22 in which I was taken into custody and this January, I will come 6 years in custody. Whichever way you look at the matter, merit or otherwise. I am one of the persons who has been custody for the longest, not participated, no role in the riots. Persons who are physically present, committed riots, they have been enlarged on bail. I am on ground of the fact that my speech is being tried in a separate cases altogether. One important fact, the act that prosecution alleges fails foul of S.15 UAPA. What has to fall within S. 15 is the conspiracy to commit riots- the charge is not that speech is falling foul under s. 15.

That part of UAPA, which leads to commit riots or riots, S. 15 is not invoked by them. This is a peculiar FIR that conspiracy to commit offence is tried separately from committing the offence pursuant to conspiracy and I am not there in 750 FIRs. My speech is conspiratorial in nature and that conspiracy is s. 15 and if that goes, mine also goes. The prosecution for speech, I have been enlarged on bail- FIR 22/2020 in which I was in custody for 4.5 years. For same speech, I am prosecuted in Uttar Pradesh, Aligarh, Allahabad HC enlarged me on bail. Aligarh FIR 55/2020- 25 January, 2020.

Please have a look at the bail order [Sharjeel Imam's Speech Didn't Incite Violence, No Call To Bear Arms: Allahabad HC Grants Bail In Aligarh Sedition Case]-

Advocate Rajat Nair for Delhi Police.