Umar Khalid's Name Finds A Recurring Mention In Conspiracy Behind Delhi Riots, Protests Were Geared Towards Grave Consequences: Delhi High Court

Denying bail to student activist Umar Khalid in Delhi riots larger conspiracy case, the Delhi High Court today observed that the protests against Citizenship Amendment Act, 2019 (CAA) and 2020 North-East Delhi riots were prima-facie orchestrated at various "conspiratorial meetings" held from December 2019 till February 2020, some of which were also attended by Khalid.

A division bench of Justices Siddharth Mridul and Rajnish Bhatnagar said that Khalid's name finds a recurring mention from beginning of the conspiracy till the riots, adding that he was a member of WhatsApp groups like DPSG and Muslim students of JNU and had also participated in various conspiratorial meetings.

"Admittedly these protests metamorphosed into violent riots in February 2020, which began by firstly choking public roads, then violently and designedly attacking policemen and random members of the public, whereat firearms, acid bottles, stones etc. were used, resulting in the admitted and sad loss of 53 precious lives and the destruction of property worth several Crores. These protests & riots prima-facie seem to be orchestrated at the conspiratorial meetings held from December, 2019 till February, 2020," the court said.

The court also said that if the chargesheet and material collected during investigation is taken at face value, there was a premeditated conspiracy for causing disruptive chakka-jam and pre-planned protests at different planned sites in the national capital, which was engineered to "escalate to confrontational chakka-jam and incitement to violence and culminate in riots in natural course on specific dates."

The protest planned was "not a typical protest" normal in political culture or democracy but one far more destructive and injurious, geared towards extremely grave consequences, the bench said.

It added "The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such pre- mediated plan and as such the same would prima facie be covered by the definition of 'terrorist act'."

The court was of the view that it cannot turn its blind eye to the incriminating materials against Umar Khalid, while noting the fact that he had delivered a speech on February 17, 2020 at Amrawati, Maharashtra referring to the visit of then-US President Donald Trump, which according to the prosecution heralded the 2020 riots.

"The manner in which the administration initially rejected permission for the appellant's speech and thereafter how the speech came to be delivered clandestinely on that very day is something which gives credibility to the accusation of the prosecution. Further, the CCTV footages filed along with the charge- sheet, its analysis and the flurry of calls amongst the appellant and other co-accused after the riots of 24th of February, 2020 also merits consideration in the background of various meetings, statements of various protected witnesses and the WhatsApp chats filed in the charge- sheet," the court said.

During one of the hearings, the bench had raised queries regarding the use of words like "Inquilabli Salam" and "Krantikari Istiqbal" in Umar Khalid's Amravati speech. The bench had orally remarked that the speech was prima-facie incriminating & inflammatory.

Senior Advocate Trideep Pais representing Khalid had responded that using the word 'revolution' in his speech was not a crime and that there was no call for violence or incitement of any sort in the same.

On this, the court rejected Pais' contention that the call to revolution does not have to affect only the immediate gathering. The court observed that the call to revolution may affect many beyond those who were visibly present while the speech was delivered. 

Mentioning Maximilien Robespierre, who lead the French revolution, the court said:

"This court is of the view that possibly, if the appellant had referred to Maximilien Robespierre for what he meant by revolution, he must have also known what revolution meant for our freedom fighter & first prime minister...The very fact that Pandit Jawaharlal Nehru believed that democracy has made revolution superfluous after independence and how it meant the complete opposite of a bloodless change. Revolution by itself isn't always bloodless, which is why it is contradistinctly used with the prefix - a 'bloodless' revolution."

"So, when we use the expression "revolution‟, it is not necessarily bloodless. This court is reminded of that although, the activity of "revolution" in its essential quality may not be different but from the point of view of Robespierre and Pandit Nehru, in its potentiality and in its effect upon public tranquillity there can be a vast difference."

Upholding the trial court order denying bail to Umar Khalid, the High Court said that the lower court rightly held that a finding has to be given on a cumulative reading of statements of all the witnesses and other events presented in the chargesheet, even though there were inconsistencies in the statements of some protected witnesses.

"The Ld. Sessions Judge didn't miss the wood for the trees and has extensively dealt with the contention of the rival parties to arrive at a just decision, which cannot be faulted, especially when at the stage of bail, the Ld. Judge was mandated to only be satisfied to the extent of accusation being "prima-facie true" and not conduct a 'Mini Trial' and return an elaborate findings relating to the veracity of the testimony of each witnesses, whose statements were recorded during investigation," the court said.

The bench also observed that under UAPA, it is not just the intent to threaten unity and integrity but also likelihood of the same which is covered under Section 15, which defines a terrorist act. 

The court also said that the provision includes "not just the intent to strike terror but the likelihood to strike terror; not just the use of firearms but the use of any means of whatsoever nature, not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, that constitutes a terrorist act."

It was also observed that under Section 18, not merely conspiracy to commit a terrorist act but an attempt to commit or advocating the commission or advising it or inciting or directing or knowingly facilitating commission of a terrorist act that is also punishable.

"In fact, even acts preparatory to commission of terrorist acts are punishable under section 18 of UAPA. Thus, the objection of the appellant that a case is not made-out under UAPA is based on assessing the degree of sufficiency and credibility of evidence not the absence of its existence but the extent of its applicability; but such objection of the appellant is outside the scope and ambit of section 43D(5) of the UAPA," the court said.

The court thus dismissed the appeal filed by Umar Khalid challenging the trial court order denying him bail in the case. The bench had reserved its decision on September 9.

Khalid had moved High Court after he was denied bail by the Karkardooma Court on March 24. He was arrested on 13 September, 2020 and has been in custody for 765 days.

In the bail appeal, Khalid's counsel Senior Advocate Trideep Pais started arguments on April 22 and concluded on July 28. The prosecution represented by Special Public Prosecutor Amit Prasad began arguments on August 1 and concluded on September 07.

The FIR against Khalid invokes stringent provisions including Sections 13, 16, 17, 18 of the UAPA, Sections 25 and 27 of the Arms Act and Section 3 and 4 of the Prevention of Damage to Public Property Act,1984.

Khalid, a scholar and researcher, is an accused in the FIR 59 along with the Pinjra Tod members Devangana Kalita and Natasha Narwal; Jamia Millia Islamia student Asif Iqbal Tanha and student activist Gulfisha Fatima.

Others who have been charge-sheeted in the case include former Congress Councillor Ishrat Jahan; Jamia Coordination Committee members Safoora Zargar, Meeran Haider and Shifa-Ur-Rehman; former Aam Aadmi Party Councillor Tahir Hussain, activist Khalid Saifi, Shadab Ahmed, Tasleem Ahmed, Mohd Salim Khan and Athar Khan.

Khalid and JNU student Sharjeel Imam were the last to be chargesheeted in the case. Zargar, Kalita, Narwal, Tanha and Jahan have already been granted bail by the courts in the FIR. Kalita, Narwhal and Tanha were granted bail by the division bench of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani last year.

Case Title: Umar Khalid v. State

Citation: 2022 LiveLaw (Del) 982

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