Referring to the February 2020 speech made by student activist Umar Khalid at Amravati, the Delhi High Court on Monday said that the speech, which may be in bad taste, does not make it a terrorist act.
A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar was hearing the appeal filed by Umar Khalid challenging the Trial Court's order refusing him bail in the case.
"…that the speech is in bad taste, does not make it a terrorist act. We understand that extremely well. If the case of the prosecution is premised on how offensive the speech was, that by itself won't constitute an offence. We will give them (prosecution) the opportunity," Justice Mridul orally remarked thus.
He added "….Offensive and distasteful it was. It may tantamount to defamation, other offences, but it does not tantamount to a terrorist activity."
The development came after Senior Advocate Trideep Pais appearing for Umar Khalid referred to the allegation of the Amravati speech given by him on February 17, 2020.
It may be noted that the Bench had earlier said that the speech in question was obnoxious, hateful, offensive and prima facie not acceptable.
In today's hearing, Advocate Sanya Kumar assisting Pais in the matter, read out statements of various protected witnesses namely Sierra, Smith, Echo, Delta and Gama to show that none of them called the Seelampur meeting as a secret meeting, opposed to what has been alleged by the prosecution.
Debunking the prosecution's allegations, Kumar also added that the call detail records of co accused Natasha Narwal showed that she was not present at Seelampur on the date in question.
Kumar also highlighted that the statements given by protected witnesses Sierra and Smith were similar and identical in the language, version and words used by them.
"Your lordships will note that Smith, whose statement was recorded two or three days before my arrest, is the only witness who talks about me being in collection of weapons. There is no recovery from me," Kumar added.
Kumar also argued that the other protected witness namely Echo, who referred to the Seelampur meeting as well as Umar Khalid's speech at Seelampur in his sec. 164 CrPC statement, did not do so in the statement recorded under sec. 161 CrPC.
"Then he (Echo) says "public ko bhadkaya". But he doesn't mention, what were the words used, what was said…..The Prosecution also doesn't make out a case that the speech given by Umar Khalid in Seelampur was provocative," Kumar submitted.
Additionally, referring to the photograph of Umar Khalid and other persons including co accused persons regarding the alleged secret meeting in Seelampur which was acquired from the Facebook, Pais argued thus:
"There is a picture, after that there is another. This is a prosecution document and a conspitorial meeting. Would anyone who wanted to execute a conspiracy, take a selfie and put it on Facebook?"
Pais further argued that the premise of the impugned order, wherein the Special Judge had denied bail to Khalid, was itself wrong.
"Does the court jump to the conclusion that it was a Conspitorial meeting just because the chargesheet says so?….Does the court not have even to look at the broad probabilities and see how...nothing is disclosed. The impugned order reproduces the chargesheet allegations," Pais submitted.
The matter will now be heard on July 4 at 2:15 PM when Pais would likely be concluding his arguments.
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.
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.
Title: Umar Khalid v. State