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

Dave: those riots have 750 FIRs, and I am not accused in any one of those. If I have conspired pursuant to which riots took place, I should have been made in atleast one. i have been in custody for 4.5 years for those speeches and what they say now, that those speeches were conspiratorial but that 'plus' in addition to speech is completely missing. there is a judicial finding by Allahabad HC that those speeches did not call for violence.

assuming s. 15 is attracted, is the material only going to be the speech? I would need 10-15 minutes

J Kumar: you are virtually rearguing

Raju: they have said misleading, I will point out

arguments will continue tomorrow.

Dave: they said in counter that there is a DPSG group

J Kumar: Raju said they acts of yours are terrorist act

Dave: a speech can't, there has to be an act

discusses interpretation of s. 15 UAPA

J kumar: a speech would also cause. any act of yours which costs disruption of supply

Dave: how do I disrupt? by standing and giving speech, it can't fall under s. 15(1)(a). Reading counter, I am looking for something more than speech. At one place they say I am expert because I wrote thesis on riots, and in another place they said I failed to orchestra large-scale violence. I am not member of the DPSG group.

They said, to refine their strategy, conspirators formed the Delhi Protest Support Group (DPSG) for achieving their goals of terror incidents. For the communication and flashing the message, a WhatsApp group i.e., DPSG was also created. Preparation of violence started on 23.1. 2020 where secret meeting took place where Umar Khalid, Natasha and others were part of.

What is attributed to me is the statement- humare pass char hafte hai- there is no call for taking up arms, violence. When I was arrested, I was arrested from Bihar.

J Kumar: read his uttar pradesh speech

Dave reads it- relates to allegation of removing Assam from India- there is an FIR registered against me in Assam. the argument is, whatever they are, I have faced prosecution.

J Kumar: can we take your argument that these speeches won't constitute terrorist act?

Dave: they will not constitute conspiracy in this FIR. See. S. 153A- causing enmity, UAPA also already invoked. They did not file chargesheet and I was given default bail. Aligarh speech, Assam FIR registered and then Manipur FIR, but no chargesheet filed. Then Aligarh speech, bail granted and in arunachal pradesh, I was granted default bail...everything I have done, I have been prosecuted. 2022 FIR is the mother FIR.

J Kumar: except Assam, no FIR invoked S.15 UAPA?

Dave: see S. 2(o)(i) definition of unlawful activities-(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; If I have said cut chicken neck, S. 13 applies and not S. 15 which is terrorist act.

Sr Adv Siddharth Dave, for Sharjeel Imam: first thing I would like to say- I am not a terrorist as I have been called by respondent. I am not an anti-national as called by the State.

I am citizen of this country, citizen by birth and i have not been convicted for any offence uptil now but i am being labelled as intellectual terorrist- ASG says intellectual terrorist are more dangerous. The words were used against a citizen of this country, I can understand after a full-fledged trial because i lose presumption of innocence but this label has caused anguish to me.

It seems to me, the blame on both side has been kept on my doorway. I did not say so, Sharjeel said-this is peculiar because it didnt use to happen earlier. I have argued there is FIR 22/2020 which is registered on 25.1.20- in which I was arrested on 28.1.20. I was taken in police custody for- 124A, 153A, 153B, 505.2, and S. 13 UAPA for giving speeches. I have been prosecuted for giving speeches which ASG played it in open court.

Yes, I have given those speeches and equally, I have been prosecuted for giving those. If I am arrested for giving those speeches, how do I figure out in this for giving those speeches? I am facing prosecution at manipur, assam etc and once I am taken in custody and they have my mobile etc and this FIR comes to be registered in 6.3 2020 showing me as a conspirator which were committed on 22-24 Feb, 2020. Of course, I could have not been physically there. But when this FIR was registered, I was not an accused. I was named only on 25.8.20- why I am labouring on this? my speeches did not lead to riots.

J kumar: prosecution case is, you already started conspiring and you said-hamare pass sirf 4 hafte hai and agli jo sunayi hai, court ko uski nani yaad dilwadenge- they said, you created a platform for riots to take place so that conspiracy gets fruitified

Dave: they have to show that apart from speech, there is something more that I did. Speech is one part, but what more did I do for conspiracy? I must have met people, done something.

Sibal: I made a speech at Amaratavi and now look, they say permission was not given to give speech. In Maharashtra Act, the organiser would be punished for 1 years for not taking permission for the speech but I am not an accused yet they are citing this against me.

Somebody adds me to a whatsapp group where I have not sent a message and those who sent are not accused. they are citing this against me. See, only admins can send message, nadeem did and he is not an accused. 4 messages attributed to me are sent by someone else. Sometimes it happens that in congress party group, I am added and I get message but if someone says something, I can't be prosecuted for that.

At chandbagh, they say I am there but CDR analysis shows I am not. Petitioners location throughout are set out here- I only go to shaheen bagh at 11:31 and Saifi leaves before, and how can it be hatched- they relied to show we all met at 8.1.

Ratanlal FIR 65, my friend relied upon- I am not accused in this. He shows the video of another accused and this is again me- the death of the head constable. And in FIR 69, death of another constable, i am not an accused.

they say, I gave a speech in 2016-bharat ke tukde honge, it is not attributed to me.

J Kumar: who said it?

Sibal: some other student. they filed another chargesheet in 2016, in which it is said I did not say that speech. This kind of evidence.

Allegation that sharjeel Imam made MSJ group on suggest of Umar Khalid, the petitioner was added and he did not send a single message. In about 750 FIR, I am not an accused and in only FIR 101, I have been discharged- what is the conspiracy then? the charge is that because of my speech, the bombs are thrown so surely I should have been made accused in others.

Last thing I have to say- these are students, they agitate wrongly or rightly. In younger days, even we used to agitate and if we protest, these is no use of putting me in jail, convict me. you can't keep me incarcerated as if I am incarcerated for protesting. Singhvi read judgments after judgments where for overt acts and lesser years of incarceration, the court has granted bail.

There are judgments where trial courts have found that evidence has been fabricated, what credibility does the organisation have except motive? look at this judgment, on delhi special cell fabrication of evidence. 17 judgments on findings of fabrication and cases involving deadly riots.

Sibal concludes.

Sibal: now change of law- in Zaroor Ahmed Watali- material prima facie true-surface analysis of probative evidence and test quality of evidence and then come to the conclusion- what did the HC say? he made a speech which is good enough. We cited Vernon, the HC does not take note of it. No overt or covert act attributed to me and I am in conspiracy!

J Kumar: there contention is your provocative speech [influenced others]

Sibal: that is mylords for you to decide because if that are the speeches, many of us would be liable to go to jail.

J Kumar: we have reservation about going into merits

Sibal: I did not go in merits and once I have undergone 5 years, what's the point of going into merits. And what public interest would be served because if I come out, surely I can't single-handedly influence and what purpose would be served to continue me in custody.

In George Fernandandis' days, the railways were not allowed to move, the Kisan or Gujar agitation but there was no UAPA.

J Kumar: in sikh riots

Sibal: Not in sikh riots. In fact, i was a counsel allowed to go around and what I found was horrific! What have these kids done? you can't say its a terrorist act. there are other ways to deal with it but not this.

Now, HC doesn't deal with anyone the test set out in Vernon. At some stage, the HC says as far as the plea made on behalf of the Appellants that the alleged acts of the Appellants, 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-same thing happend in trial court, so where do we go?

We cited Vernon, and what does the court say? the HC does the probative value of evidence has to be arrived at by the trial court.

reads a document about secret meeting- calls for regime change will come from streets- what gave statement? Rahul Roy who is not an accused and I am not attributed- this is strange!

Then reads another by yogendra yadav- not an accused.

Safoor Zangar on bail, Sam Kasami not an accused. They are citing this against me. See statement of Bond, protected witness-“On 22.02.2020, Chakka-Jaam was done at Jafrabad. On the same day at about 10 PM, JCC called an urgent meeting at JCC office which was attended by Safoora, Saiful Islam, Asif Tanha, AAZMI office bearers among others. I was also present in the meeting. In that meeting Safoora said that in North-East, Chakka-Jaam has to be started and others sites liked at Hauzrani. Asif said that he has received instructions from Umar Khalid and Nadeem Khan that they have to go to protest sites and start riots by Chakka-Jaam. Only then Government will take back the bill, then Saiful also said he has also received same instructions from Umar and Nadeem Khan and also said that when shots are fired and bomb is set of during riots then leave well within time. After this 20/25 members of the JCC left for protest sites”- none of these accused- those who made these statements are not accused.

Sibal: I ask myself- an academician in an institution, what can he do to overthrow the country or state? Before the High Court, they relied on this speech-"prima facie delivered inflammatory speech to instigate communal riots"- how does the high court say that? it says the whatsapp groups, what is my role? there are allegations of inflammatory speech against co-accused who are out on bail.

all this takes care of the fact that I am entitled to parity and only thing relied upon is the speech which nobody calls inflammatory. I am also entitled to bail on changed circumstances.

I withdrew second SLP 14.2.24 and subsequent bail application filed on changed circumstances-

1. parity with co-accused which could not have been claimed when HC denied first bail application and then came SC order for clarification.

2. least period of incarceration- 3 years went by

3. SC pronounced 3 judgments- Vernan Gonsalves[bhima koregaon] in which court said: "In none of the materials which have been referred to by the prosecution, the acts specified to in sub-clause (a) of Section 15(1) of the 1967 Act can be attributed to the appellants. Nor there is any allegation against them which would attract subclause (c) of Section 15(1) of the said statute. As regards the acts specified in Section 15(1) (b) thereof, some of the literature alleged to have been recovered from the appellants, by themselves give hint of propagation of such activities. But there is nothing against the appellants to prima facie establish that they had indulged in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so. Neither there is allegation against them of causing death of any public functionary or attempt to cause death of such functionary. Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b) of the said Act. Thus, prima facie, in our opinion, we cannot reasonably come to a finding that any case against the appellants under Section 15(1) (b) of 1967 Act can be held to be true"

Sibal: I was showing the order which was not treated as precedent

J Kumar: avoid repetition

Sibal: my friend argued on parity which doesn't apply to umar so that is why I was showing the impugned judgment. what does it say? these acts of accused in that case doesn't amount to offence under s. 15. The argument was that its not an offence under s.15 UAPA therefore, 43D(5) doesn't apply. What is the precedent here? Can I as an accused not show that nothing is attributed to me and that I am entitled to bail?

Am I not entitled to say that on my facs, i am entitled to bail? that we are not interpreting the legal position via S. 43D(5), my learned friend is saying I am not even entitled to argue on facts?

So, the allegation is I made the inflammatory speech, now allow me to play the other part of the speech.

J Kumar: i think its a part of the chargesheet

Sibal plays Umar Khalid's Amaratavi speech, where he advocates for civil disobedience movement just like the one led by Mahatma Gandhi. He says- We will not meet violence with violence, hatred with hatred, but we will meet their violence with peace, and we will meet their hatred with love- how is this violation of UAPA sibal asks

J Kumar: its the other part

Sibal: not ours, this is all I have said

J Kumar: allegation is that, the speeches led to the riots resulting in death of 53 persons and many injured- that was his argument

Sibal: which is that speech? I have shown you 17 Feb, Amaratavi- I am not even there, I am in Maharashtra. I have said, I am prepared to sacrifice myself if they sent me in jail. You can't show other's speech and say i am responsible for riots.

Raju: on facts they said something which is not correct, I will address it in rebuttal.

Sibal: if someone else said they won't argue, it can't be attributed to me unless I am in conspiracy there as well. arguments on charge were addressed on 34 occasions, in which 4 times adjournment was sought by us.

On question of delay- they continue to say investigation is going on. 18.9.23- umar khalid, salim khan, tasleem, tahir etc said they want to argue on charge and prosecution is not making arguments and judge says no-

J Kumar: normally its the accused who begins

Sibal: this shows we were ready. 20 Aug, 2024 they said that investigation is complete, the court recorded it on 4 sep, 2024 and next day 5 sep, we began arguments on charge-unless the investigation is complete, how do we begin with arguments on charge? How can the learned friend argue- when they filed 4 supplementary chargesheet and judge is not available- 34 hearings and we took only 4 adjournments- how is delay attributed to us?

on parity- SC judgment on Kavita- where court said that impugned judgment shall not be treated as precedent- but does the impugned judgment is via me? it is impugned judgment via interpretation and facts.

to be continued at 2.

Sibal begins.

Sr Adv Siddhartha Luthra says he will put a note for Shadab Ahmed.

Sibal: let's assume this is my application for bail. I have been inside for 5 yrs, 3 months- 13 Sep, 2020 till date.

Its not even prosecution case that i participated in any activity in delhi. I am involved in 59 on ground of over-all conspiracy and alleged to have given speech in Maharashtra on 17 Feb and that's all attributed. Amravathi speech. That's the only act attributed and other is that I was made a part of a whatsapp group added by someone else- there is no message and if there is, all innocent. What will happen if my bail is rejected? I will be inside for another 3 yrs, total 8 years without trial. ASG says 2 years and SG says 6 months trial will be completed- I don't know.

I am an academician, scholar and have been inside without a trial- that is not the exposition of law.

2-3 specific arguments against me- I have been barred for moving bail application and second, question of parity does not arise and three, I delayed the trial.

i am only dealing with ASG's arguments- the reason why i am attributed delay is the counsel arguing bail sought adjournments 4 times and that's the only.

J Kumar: ASG relied on judgment contending that delay is attributed if even co-accused contributes to the delay.

Sibal: he relied on Tasleem Ahmed, but I am not a party to the matter. Other co-accused has also sought adjournments- all this is during course of arguments on bail and I am talking about delay in 'trial'.

J Kumar: his case was the trial would commence after framing of charge but it could not be framed because accused including you sought delay. you can counter this.

Sibal: in the high court, they don't raise the issue of delay. it is the first time they are arguing on this. there was a stay on trial for 334 days due to documents not given and 9.6.23 the prosecution filed the latest chargesheet and they kept saying the investigation is continuing.

J Kumar: we have some preliminary work, Mr Sibal come at 12:30.

matter will continue at 12:30 pm