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

Delhi police to continue tomorrow.

Khazanchi: For the purpose of grant of bail to TADA detentes, we divide the undertrials into three classes, namely, (a) hardcore undertrials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general arid to the complainant and prosecution witnesses in particular; (b) other undertrials whose overt acts or involvement directly attract Sections 3 and/or 4 of the TADA Act; (c) undertrials who are roped in, not because of any activity directly attracting Sections 3 and A, but by virtue of Sections 120B or 147, I.P.C., and;

(d) those undertrials who were found possessing Incriminating articles in notified areas and are booked under Section 5 of TADA.

Ordinarily, it is true that the provisions of Sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealth with by the same yardstick. Different approaches would be justified on the basis of the gravity or the charges.

Adopting this approach we are of the opinion that undertrials falling within group (a) cannot receive liberal treatment. Cases of undertrials falling in group (b) would have to be differently dealt within. in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complainant the family members of the complainant, or witnesses. Cases of undertrials falling in groups (c) and (d) can be dealt with leniently and they can be released if they have been in sail for three years and two years respectively.

My respectful submission, mylords may consider the role of individual like my client who is not a hardcore terrorist. Since I am not a menace to society,

J Kumar: are you saying that we can evaluate the evidence at this stage?

Khazanchi: while considering the delay, mylords may consider. The provisions in TADA are identical.

J Kumar: go to 43D(5) proviso

Khazanchi: courts can come to that conclusion when charges are framed but here the charges have not been framed.

petitioners conclude.

Luthra: there is a short note I have given. Two things I want to point out. No CCTV footage of me doing any act of violence. I was not in the scene of crime. The CDR shows me only after the incident and they wait for one year and then they come up with witnesses to fill me for prior. All I am asking, the CDR supports me and secondly, there are three elements- I was involved in maruti burning showroom, I was involved in death of ratanlal, and then on conspiracy. In the first two, I have got bail and in third I have been in custody.

Khazanchi: I am only relying on one case-Shaheen Welfare Association, the case involved PIL showing state of undertrials in TADA case. The petition thus poses the problem of reconciling conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities. While it is essential that innocent people should be protected from terrorists and disruptionists, it is equally necessary that terrorists and disruptionists are speedily tried and punished. In fact the protection to innocent civilians is dependent on such speedily trial and punishment. The conflict is generated on account of the gross delay in the trial of such persons.

This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted. It also causes irreparable damage to innocent persons who may have been wrongly accused of the crime and are ultimately acquitted, but who remain in jail for a long period pending trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may be ruined.

Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh's case (supra), on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.

These competing claims can be reconciled by taking a pragmatic approach.

The proper course is to identify from the nature of the role played by each accused person the real hardcore terrorists or criminals from others who do not belong to that category; and apply the bail provisions strictly in so far as the former class is conceived and liberally in respect of the latter class. This will release the pressure on the courts in the matter of priority for trial. Once the total number of prisoners in jail shrinks, those belonging to the former class and, therefore, kept in jail can be tried on a priority basis. That would help ensure that the evidence against them does not fade away on account of delay. Delay may otherwise harm the prosecution case and the harsh bail provisions may prove counter-productive.

A pragmatic approach alone can save the situation for, otherwise, one may find that many of the undertrials may be found to have completed the maximum punishment provided by law by being in jail without a trial. Even in cases where a large number of persons are tied up with the aid of Sections 120B or 147, I.P.C., the role of each person can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered. With inadequate number of courts, the only pragmatic way is to reduce the prison population of TADA detentes and then deal with hardcore undertrials on priority basis before the evidence fades away or is lost. Such an approach will take care of both the competing interests. This is the approach which we recommend to courts dealing with TADA cases so that the real culprits are promptly tried and punished.

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.