27 April 2022 8:34 AM GMT
The Delhi High Court on Wednesday continued hearing the appeal filed by student activist Umar Khalid challenging the Trial Court's order refusing him bail in the Delhi riots larger conspiracy case.During the hearing, the video of a speech made by Khalid in Amravati in February 2020 was played in the court. On the last occassion, the bench, after reading the transcript of the speech, had...
The Delhi High Court on Wednesday continued hearing the appeal filed by student activist Umar Khalid challenging the Trial Court's order refusing him bail in the Delhi riots larger conspiracy case.
During the hearing, the video of a speech made by Khalid in Amravati in February 2020 was played in the court. On the last occassion, the bench, after reading the transcript of the speech, had observed that the speech was prima facie "obnoxious" and "offensive".
Senior Advocate Trideep Pais, appearing for Khalid, had then submitted that the speech was made in the context of protests against the Citizenship Amendment Act and that the harsh words used against the Government cannot amount to an offence under the UAPA.
Today, Justice Rajnish Bhatnagar, who was sharing a bench headed by Justice Siddharth Mridul, asked Senior Advocate Trideep Pais if it was proper to use the word 'jumla' against the Prime Minister of India.
"This word jumla is used against the Prime Minister of India. Is it proper?", Justice Bhatnagar orally asked. Pais responded that it is not illegal to be critical of the government or polices of the government.
"Criticism of the Government cannot be a crime", said Pais.
Justice Bhatnagar also questioned the use of the word 'changa' in the speech. "What he says about the Prime Minister in the speech? Some 'Changa' word was used and after that..."
"It is satire. Sab changa si was probably used by PM in a speech given", Paid responded.
"Criticism of the government cannot become a crime. 583 days in prison with UAPA charges was no envisaged for a person who speaks against the government. We cannot become so intolerant. At this rate, people will not be able to speak", Pais submitted.
Justice Bhatnagar orally remarked thus:
"There has to be a line for criticism also. There has to be a lakshman rekha."
While the speech was played before the Bench during the course of hearing today, Justice Bhatnagar asked Pais as to who was Umar Khalid referring to as 'Oonth (Camel)' in the speech while saying 'Oonth pahaad ke niche aa gaya'(camel has come down the mountain).
"Who is referred to as oonth jo pahaad ke niche aa gaya? Who is that oonth? Who is that camel?" asked Justice Bhatnagar.
To this, Pais said "He refers to the Government who was unwilling to speak to persons opposing CAA. In that context he says oonth pahad ke niche aagaya."
While Pais argued that the speech in question certainly was anti-CAA, against the Government and its policies, however he added that there was no call for violence or incitement.
"He says we are willing to go arrested, won't resort to violence. The Camera pans to crowd, the crowd is seated, it's not incited," Pais submitted.
Justice Mridul also asked Pais thus:
"There are two expressions he used. One is inquilab and other is krantikari. What is the takeaway from the use of expression krantikari?"
"It means revolutionary", Pais responded.
The bench said that it does not dispute the arguments of Pais regarding free speech, but the issue in this case was whether the speech incited people in Delhi to indulge in riots.
Justice Mridul observed: "He is invited to Amravati to deliver which he himself calls a krantikari and inquilabi speech.Your argument regarding free speech, nobody can have a question. Question is did his speech and subsequent actions lead to the riots that happened? The live link with speech and other material gathered whether it led to incitement of violence?Nobody has qualms about free speech but what is the consequence of your employing these expressions, offensive as they evidently are. Did they incite the populous in Delhi to come out to streets?If they did even prima facie, are you guilty of UAPA sec. 13? That is the question before us"
"The speech in itself didn't call to violence. No witness to violence of Delhi have said that i was incited by this. Only two witnesses cited to have heard this speech, they say they weren't incited by the speech", Pais submitted. He pointed out that the speech was made in Amaravati few weeks before the riots and Khalid was not present in the site during the riots.
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.
Invocation of UAPA mala fide : Khalid's lawyer
During the course of hearing, Pais began by calling the FIR in question a "calculated FIR", highlighting the fact that it was registered on March 6, 2020 whereas 751 FIRs already stood registered within a few days (end of February) by the Police after the violence erupted amid the riots.
He argued that while initially only bailable offences were added by the Police, later non bailable offences including UAPA was added just to ensure that the accused persons remain in jail in the matter.
"This is a mala fide invocation (of UAPA) in order to just ensure that people don't get bail. FIR isn't worth the paper it's written on," Pais argued.
Furthermore, Pais also highlighted the loopholes in the statements recorded by various witnesses including protected witnesses to show that even if the same are taken by fullest force, they do not constitute crime.
"Allegations by witnesses which are fanciful in nature but has no connection with actual crime. No recovery, no connection with violence. Not present," Pais argued.
Pais also argued that the speech in question has no incitement as contemplated by Indian case laws on the subject including Kedar Nath Singh case and that there was no tendency or intention to create disorder in the speech or any incitement to violence.
"The crowd was sitting, there was no call for violence. However much we disagree with what the appellant said, it was by no means a speech that could come near sec. 124A of IPC, leave alone the offences of terror," Pais said.
At the outset, Justice Mridul orally remarked that while there are no qualms regarding freedom of speech and expression, the question which needs to be considered by the Court is regarding the subsequent actions of the speech and whether it lead to the riots that happened.
"The live link with the speech and other material gathered, whether it led to incitement of violence?" added Justice Mridul.
Witness statements contradictory : Khalid's lawyer
Furthermore, Pais highlighted the discrepancies in the statements recorded under sec. 161 and 164 of CrPC regarding two protected witnesses namely Beta and Neon.
Qua the statements of Beta, Pais argued that the said witness lacked complete credence and that there was no aftermath of the speech that he spoke of.
"Assessment of whether the speech was provocative is for the lordships and not for some individual," Pais argued.
For another protected witness namely Neon, Pais argued that his statement did not contain any effect of speech contemplated by case law as a reaction.
"The police took till July to even find his speech," Pais argued.
He added "The offence of 124A or there being any reaction of speech in Delhi is not only unfounded, but unlikely and more than remote. The special court also didn't find it. At best, beta statement where he says intention to do chakka jam, chakka jam in itself cannot be terror by any stretch of imagination."
At the outset, Justice Mridul said that in a case of conspiracy, everything that each co conspirator does, can be used against Umar Khalid and that the acts of co conspirators can be attributable to him as part of the said conspiracy.
"This is the reason why case of Prosecution is that it was conspiracy between large no of conspirators. By himself he may not be able to give injaam to conspiracy, for that there have to be co conspirators," Justice Mridul added.
To this, Pais responded that apart from showing that all the personalities in question were opposed to CAA, there was nothing else that the Prosecution showed and that at best, the common intention was to peaceful protest and nothing else.
"It can't be that someone wakes up in November and spins a yarn about what my speech was about and half of it is wrong and can be termed as incitement. There has to be nexus between speech and violence in Delhi," Pais said.
Lastly, Pais referred to the impugned order and argued that the Trial Court took the statements of witnesses on face value, ignoring the contradictions in them.
"It flies in the face of each other. There are several witnesses like that. I will adhere to Watali and other judgments but i will show that on the face of it, chapter 4 offences are not made," Pais argued.
The matter will now be heard tomorrow.
Live updates from the hearing can be tracked here.
Opposing the appeal, the prosecution had earlier told the Court that the "narratives" sought to be created by Khalid cannot be looked into as his defence at the stage of bail.
In the short reply filed, the prosecution had further said that to view Khalid's role in isolation in the case of conspiracy will be impermissible in law.
The prosecution also referred to the trial court orders dismissing bail pleas of co-accused namely Shifa-ur-Rehman and Khalid Saifi to argue that the same would clearly demonstrate the length and breadth of the conspiracy, role played by different entities, WhatsApp Groups and individuals in pursuance to the said conspiracy.
Accordingly, the prosecution had submitted that the appeal raises no good grounds for consideration by the High Court and thus, must be dismissed.
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.
The Case of Umar Khalid before Trial Court
Senior Advocate Trideep Pais had argued that while the protests against Citizenship Amendment Act were secular, it is the chargesheet filed by the Delhi Police which is communal. He had also submitted that while the prosecution pushed on claiming that chakka jam was equal to terror act, Chakka Jam is not an offence and that it has been used by students and others while participating in various agitations.
He added that the statements of 'cooked up witnesses' showed a pattern of 'false implication' in the chargesheet as well as FIR 59/2020. He argued that one of the witness' statements which was recorded three days prior to Umar Khalid's arrest was done in order to "suit the arrest".
What was the Prosecution's case before Trial Court?
Referring to sec. 15 of the UAPA Act which defines a terrorist act, Special Public Prosecutor Amit Prasad had argued that while the riots were meticulously planned, there was destruction of properties, disruption of essential services, use of petrol bombs, lathis, stones etc and therefore meeting the criteria which is required under 15(1)(a)(i),(ii) and (iii) of the Act.
Prasad had added that a total of 53 people died during the riots, 142 people were Injured in first phase of riots and other 608 were injured in the second phase.
He had argued that the 2020 sit-in protests were carefully planned, picking strategic protest sites closer to 25 mosques. He had submitted that these sites were places with religious significance but were purposely given Secular names to give legitimate appearance to the allegedly communal protests.
He had referred to a December 20, 2019 meeting which was attended by Umar Khalid with Harsh Mander, members of United Against Hate, Swatantra Nagrik Sangathan, etc. He had averred that this meeting was key in deciding the areas of protest and strategies to mitigate police clashes by keeping women at the forefront.