New Delhi, Jan 5: Observing that reasonable grounds exist for believing that allegations against Umar Khalid and Sharjeel Imam are prima facie true, the Supreme Court on Monday refused bail to them in the 2020 Delhi riots conspiracy case but granted it to five others, saying all the accused do not stand on the same footing.
Khalid and Imam, who have been incarcerated since 2020, can file fresh bail applications after the examination of protected witnesses or after one year from today, the court said, as it rejected their contention of delay in trial.
There was a prima facie case against Khalid and Imam under the Unlawful Activities (Prevention) Act, a bench of Justices Aravind Kumar and N V Anjaria said, noting that prosecution material suggests that they were involved in “planning, mobilisation and strategic direction” of the riots.
While the two will remain in jail, activists Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohd. Saleem Khan and Shadab Ahmad have been given bail by the apex court, which imposed 11 conditions and said any misuse of liberty would attract cancellation of bail.
The court noted that the guarantee of liberty enshrined under Article 21 of the Constitution is of foundational importance, but at the same time, the security of the community, the integrity of the trial process, and the preservation of public order are equally legitimate constitutional concerns.
The two (Khalid and Imam) stand on qualitatively different footing as compared to the other accused, the court said.
The prosecution prima facie disclosed “a central and formative role” and “involvement in the level of planning, mobilisation and strategic direction extending beyond episodic and localised acts”, the bench said.
“…this court is satisfied that reasonable grounds exist for believing that the accusations against Umar Khalid are prima facie true,” the bench said, while citing prosecution material “including the chronology of meetings, the alleged articulation and propagation of the chakka jam strategy, the operation of coordinating committees and groups…”.
It also referred to “the protected witness statements alleging preparatory and escalation-related discussions, the pleaded movement of protest activity into mixed-population zones, and the alleged systemic disruption of civic life in the national capital”.
The February 2020 riots in northeast Delhi broke out during protests against the Citizenship (Amendment) Act (CAA) and the National Register of Citizens (NRC), leaving 53 people dead and more than 700 injured.
According to the court, delay in trial does not operate as a “trump card” which automatically displaces statutory safeguards.
“All the appellants do not stand on equal footing as regards culpability. The hierarchy of participation emerging from the prosecution’s case requires the court to examine each application individually,” the bench said, adding that the roles attributed to them are different.
“This court is satisfied that the prosecution material disclosed a prima facie allegation against the appellants, Umar Khalid and Sharjeel Imam… This stage of proceedings does not justify their enlargement on bail,” the apex court said.
The apex court cited Section 43D (5) of the UAPA, which requires the court to deny bail if, on perusal of a case diary or chargesheet, it finds that there are reasonable grounds for believing that the accusation against such a person is prima facie true.
“The material suggests involvement at the level of planning, mobilisation, and strategic direction, extending beyond episodic or localised acts. The statutory threshold under Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967, therefore stands attracted qua these appellants,” it said.
With regard to Fatima’s case, the top court said she did not exercise independent command, resource control, or strategic oversight over multiple protest sites during the agitation against the Citizenship (Amendment) Act.
“The allegation that Gulfisha Fatima mobilised local women and coordinated protest-site logistics, though relevant to the prosecution’s case, does not presently disclose that she exercised independent command, resource control, or strategic oversight over multiple protest sites.
“The prosecution itself asserts that directions were conveyed to her by others higher in the asserted hierarchy. In these circumstances, this court finds that the level of attributed agency and control does not justify continued incarceration once the investigative purpose stands substantially fulfilled,” the bench said.
Directing the trial court to expedite the process of bail, the bench imposed 11 conditions and said the misuse of liberty would attract the cancellation of the bail.
“Right to liberty under Article 21 of the Constitution requires the State to justify prolonged pre-trial custody,” the bench said.
The top court said that while bail in UAPA cases is not given as a matter of routine, the law does not mandate the denial of bail as default. It also does not exclude the court’s jurisdiction to allow bail.
“The guarantee of liberty enshrined under Article 21 of the Constitution is of foundational importance, and no constitutional court can be unmindful of the gravity of restraining liberty before guilt is adjudicated.
“At the same time, the Constitution does not conceive liberty in isolation. The security of the community, the integrity of the trial process, and the preservation of public order are equally legitimate constitutional concerns,” the bench said.
The apex court said where Parliament has prescribed a distinct statutory threshold for the grant of bail, and where the prosecution places prima facie material suggesting organised and deliberate activity affecting public order and security of the Nation, it cannot turn a “Nelson’s eye” to such material merely because incarceration is prolonged or liberty is invoked in the abstract.
“Equally, where continued detention is not shown to be necessary to serve a legitimate purpose recognised by law, the Court must not hesitate to restore liberty, subject to stringent conditions that safeguard the larger public interest,” the bench said.
Imam was arrested on January 28, 2020, for speeches made during anti-CAA protests. He was later arrested in a larger conspiracy case in August 2020. Khalid was arrested on September 13, 2020 on charges of delivering provocative speeches on February 24 and 25 when Donald Trump, in his first term as president, visited India.
Strongly opposing the bail pleas, Delhi Police said the riots were not spontaneous but an orchestrated, pre-planned and well-designed attack on India’s sovereignty.
All seven accused were booked under the stringent anti-terror UAPA and provisions of the Indian Penal Code (IPC) for allegedly being the “masterminds” of the riots.
According to Section 16 of the UAPA, “Whoever commits a terrorist act shall, if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine.”
The accused moved the apex court, challenging the Delhi High Court’s September 2 order denying them bail.(PTI)
