The Delhi High Court on Tuesday continued hearing the appeal filed by student activist Umar Khalid challenging the Trial Court's order refusing him bail in case involving UAPA charges alleging a larger conspiracy in the riots of 2020.
Senior Advocate Trideep Pais appearing for Umar Khalid, told a division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar that the chargesheet filed in the matter is 'flowery' and 'baseless' and that Khalid was being implicated merely on the basis of one statement given by a protected witness namely Bond, which according to Pais was fabricated and recorded a month prior to Khalid's arrest.
Adding that the statement in question did not have any relation with the actual violence that erupted in the national capital during the riots, Pais argued thus:
"I have to bear the brunt of two years of imprisonment because you have a statement."
On the aspect of the witness statement being considered by the Trial Court which denied bail to Umar Khalid, Pais submitted that the impugned order was erroneous and that the understanding of the Special Judge of the Watali judgment was absolutely wrong.
"Where we are ad idem with the court (Trial Court) is this, we agree that admissibility is not the question which accused can address. But reliability is available to this Court as well as the Special Judge while hearing my bail plea," he said.
Pais added that the bail condition under UAPA is less stringent than other legislations like NDPS Act, MCOCA, Companies Act etc.
"Watali judgment clearly says that while you do not employ external methods to contradict chargesheet material, statement in itself must be good and sufficient. That is what the special judge missed. The special judge said if there is a statement, I'll consider it. The burden on the judge considering the bail plea or the bail appeal is far lesser on the burden while the judge is considering the framing of charges," Pais submitted.
He said further "Literally saying the judge had no role to play if a case is presented, nothing to weigh or analysis."
"The special judge simply reads it as it is and says I won't read it. We have three arms of the government. Good and sufficient was that role given to your Lordships. I am before your lordships for determination of good and sufficient and prima facie. He eliminates himself from the equation and says I won't decide it. If the police gives me something, I'll take it as it is."
Furthermore, Pais argued that while the statement of protected witness Bond is one of the only statements containing some material allegations against Umar Khalid, he added that the same was hearsay and lacked corroboration.
"The prosecution really needs to make up its mind as to what is the case against me," Pais argued.
He added "This is a case where a statement is made in order to implicate. It doesn't has any relation to violence in Delhi."
"This man on the 22 December, 2019 calls for a chakka jam as his own admission and then gives exculpatory statement and seeks to implicate me so that his sins are washed away when there is no evidence of my presence."
"Basically UAPA is now this, you just get a person to make a statement and that's it. That's the difficulty in which I've been arraigned in this matter."
Pais also argued that it is not investigation but statements which are procured that drives the prosecution's case.
Questioning the prosecution's case and allegations in the chargesheet that Umar Khalid asked co-accused Khalid Saifi and Meeran Haider to raise another protest site at Khureji, Pais submitted:
"No witness statement or material whatsoever, even call details, doesn't match. My question is that why do you do this? You don't have a Witness statement, no CDR but you...can you imagine the extent of which they have construed? If they have the propensity to put, i can show 10-15 paras like this which are without any basis, then it's clear that that one solitary witness bond is absolutely fabricated. Material is being fabricated intentionally to create prejudice against me."
"It goes to show that there is propensity to fabricate which is shown from the baseless chargesheet."
Umar Khalid was denied bail by city's Karkardooma Court on March 24. He was arrested on 13 September, 2020 and has been under custody since.
The matter will now be heard tomorrow at 2:15 PM.
About the Trial Court Order
Additional Sessions Judge Amitabh Rawat was of the view that Khalid had connectivity with many accused persons and that his presence throughout in several WhatsApp groups during the period beginning from the passing of the Citizenship (Amendment) Bill in December 2019 till the February 2020 riots, had to be read in totality and not piecemeal.
On the other contention raised by Pais that Umar Khalid was not present in Delhi during the time of riots, the Court was of the view that in a case of a conspiracy, it is not necessary that every accused should be present at the spot.
Thus, perusing the chargesheet and accompanying documents, the Court was of the opinion that allegations against the Umar Khalid were prima facie true and hence the bar for grant of bail as per Section 43D of the UAPA was attracted.
The Court noted that Umar Khalid's name finds a recurring mention from the beginning of the conspiracy till the riots. He was a member of WhatsApp groups of Muslim students of JNU. He participated in various meetings. He gave reference to Mr.Donald Trump in his Amaravati speech. He was instrumental in creation of JCC. He was also mentioned in the flurry of calls that happened post-riots.
The Court opined that target was to block roads at mixed population areas and encircle the entire area completely stopping the entry and exit of citizens living there and then creating panic to attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riots and the same would be covered by the definition of terrorist act under Section 15 of the UAPA.