Umar Khalid seeks bail based on time spent in jail, lack of prima facie case

Arguing for bail in a trial court once again, former Jawaharlal Nehru University (JNU) student leader Umar Khalid said he should be granted bail based on time spent in jail (over three years), lack of a prima facie case, and on parity with other accused facing far graver allegations who are out on bail in the 2020 Delhi riots conspiracy case.

Khalid’s lawyers have completed their arguments and the matter has been put up for the prosecution’s lawyers, and then the rejoinder by Khalid's lawyers on 9 April.

Appearing for Khalid in Delhi’s Karkardooma court of justice Samir Bajpai, senior advocate Trideep Pais said Khalid's case has parity in part with the cases of Devangana Kalita, Natasha, Asif Iqbal Tanha, and Ishrat, all of whom are out on bail. As a result, the case meets the parity test, argued Pais, pointing out that there was prima facie no case made out under the Unlawful Activities (Prevention) Act (UAPA).

He began his arguments with the meeting on 23 January 2020, which the prosecution has claimed was a secret meeting, but the police obtained the photographs for the meeting by getting a witness to download them from Facebook, where they had been put up. In these photographs, Khalid can be seen with several people, so “how do only a few people become accused?” Pais asked.

There have been 751 FIRs registered for the violence in Delhi after the CAA (Citizenship Amendment Act) was announced. Khalid is an accused in FIR 59 for a conspiracy to engineer the riots. His counsel pointed out that one of the witnesses (Sierra) had claimed that acid pouches had been hurled, but in none of the FIRs did the police mention any recovery of these pouches, acid injuries, or burns.

The lawyer also highlighted that this was the strongest statement against Khalid, but it also had no proof to back it up. He cited the case of Vernon Gonsalves, where the Supreme Court had stated that “no material has been demonstrated by the NIA (National Investigation Agency) before us that the appellants are members of the terrorist organisation”. Pais said Khalid’s case was similar as there was no material to back the terror claim against him.

The prosecution has claimed that Khalid was a "silent whisper", but all of this is from the “fertile imagination of the chargesheet writer”, Pais said. He said the prosecution mentioned Khalid’s messages in one of the WhatsApp groups (DPSG) in the chargesheet to allege a conspiracy, where Khalid had sent just five messages, of which one was a forwarded message from a police officer regarding the protest, asking them to de-escalate.

From both the WhatsApp group and the meeting, only a few have been named as accused. Neither those who opened the group, nor those who made the most number of arguments, were accused by the police, said Pais, adding that participation in a meeting was not illegal, and the contents of the meeting were unknown to the prosecution.

In the group there was a difference of opinion, with Owais Sultan stating that the locals did not want to be part of the protest and would not block roads. He insisted that the protestors were putting the life of the locals in danger. Pais pointed out that Sultan had posted a similar message in several groups, making his act a suspicious one.

Khalid was arrested on 13 September 2020 under UAPA for his alleged involvement in the riots in north-east Delhi in February 2020, and has been accused of being one of the “key conspirators” in the riots. The Delhi Police FIR against Khalid includes charges under sections 13, 16, 17 and 18 of the UAPA, sections 25 and 27 of the Arms Act, and sections 3 and 4 of the Prevention of Damage to Public Property Act 1984.

Khalid’s lawyer pointed out that the chargesheet was prepared on 10 September 2020, just three days before he was arrested. “It was prepared for my arrest. The violence occurred in December and February and the so-called secret meeting in January. There has been no recovery of weapons either,” said Pais.

Going on to highlight the Yavatmal speech by Khalid, which the prosecution claims triggered the violence, Pais says Khalid only speaks of Gandhi and the Constitution. For the police to claim that the speech was the trigger, there has to be imminent lawless action. One of the witnesses claimed that someone had told him about the speech, but he hadn’t heard it himself.

After several delays, Pais pointed out that the police sourced a public speech which they claimed triggered the violence, four months later in July. When the TV channels had been asked about Khalid’s speech which they had relayed, both Republic TV and Network 18 said they had obtained part of the speech from a BJP spokesperson. Pais questioned the motive of the police for attributing a riot to a person when they didn’t even have his speech with them.

“Even after three years of incarceration, we are at the same place (trial court) arguing for bail,” Pais added.

The other accused in the case include Devangana Kalita; Natasha Narwal; Asif Iqbal Tanha; former AAP councillor Tahir Hussain; Khalid Saifi; ex-Congress councillor Ishrat Jahan; Safoora Zargar; Sharjeel Imam; Meeran Haider; Gulfisha Fatima; Shifa-Ur-Rehman; Shadab Ahmed; Tasleem Ahmed; Saleem Malik; Mohd. Saleem Khan; Athar Khan; and Faizal Khan. While Zargar, Jahan, Tanha, Narwal and Kalita are out on bail, the others have been in jail for more than three years.