New Delhi: The recent denial of bail to activist and former student leader Umar Khalid is visibly a result of the lower court's total reliance on the prosecution's version of story. In absence of any material evidence, a special court presided over by Additional Session Judge Amitabh Rawat apparently went by the "hearsay" statements made by protected witnesses that are yet to pass judicial scrutiny at a later stage of trial.
Umar, a former student of Jawaharlal Nehru University (JNU), is facing the 2020 Delhi riots larger conspiracy case slapped against him, along with 17 others, under stringent sections of the Indian Penal Code (IPC) and the Unlawful Activities Prevention Act (UAPA).
While the court found the prosecution's case prima facie true without critically examining its "vagueness", "inconsistencies", "contradictions" and "inadmissibility", it seemingly did not engage with the defence's arguments – except a few.
Umar had pleaded the court in July last year that he be enlarged on bail. Eight months after his application, the order was finally pronounced on March 24 this year — following 14 hearings, at least two adjournments and three deferments. "In view of the above discussion, since there are reasonable grounds for believing that the accusation against the accused, Umar Khalid, are prima facie true…. Hence, the present application for bail stands dismissed," the court concluded.
The court recorded statements of the prosecution witnesses and arguments of the defence counsel, but said the objections raised by the latter can only be considered during the trial. Notably, the witness statements were accepted in entirety without examining their implausibility and stark contradictions among those.
"Reliability or otherwise of the statement of a witness is to be tested at the stage of trial," the court clarified.
At least nine pages of the 61-page order have been devoted to the defence's arguments, while the prosecution's arguments span over 50 pages. The rest of the order has the court's observations.
Of the total arguments made by the defence, the court addressed only five contentions — inconsistencies in the statements of the protected witnesses; Umar's absence from the city when the riots broke out; though he was part of MSJ and DPSG Whatsapp groups, yet had not written anything there; the prosecution has failed to establish any incriminating contact or link between the accused and other alleged conspirators, whether by physical presence or remote communication, which could lend any credence to the baseless allegations of a criminal conspiracy; and he is a researcher and his bent of mind can be assessed from his doctoral thesis on welfare aspects of Adivasis of Jharkhand.
The court agreed with Umar's counsel that there are inconsistencies in the statements of protected witnesses. However, the judge noted, "…a finding has to be given on a cumulative reading of statements of all the witnesses and other events presented in the chargesheet".
With regard to the defence's contention that the prosecution has failed to establish any contact or link between the accused and other alleged conspirators, the court rejected the assertion by saying, "It is also important to highlight that in a conspiracy, various continuous acts are committed by different accused persons. One act cannot be read in isolation. At times, if read by itself, a particular act or an activity may appear innocuous, but if it is a part of a chain of events constituting a conspiracy, then all the events must be read together."
The court also agreed with the defence that Umar was part of the Whatsapp groups, but he had not written any message in these groups. However, it refused to accept that the accused had no connection with his co-accused in the alleged conspiracy.
"The fact that he was part of such groups created for specific objects and his acts or presence throughout the period beginning from the passing of the CAB (Citizenship Amendment Bill) in December 2019 till February 2020 riots (as mentioned in the chargesheet) has to be read in totality and not piecemeal. He has connectivity with many accused persons," the order stated.
The contention that Umar was not present in Delhi during the riots was also rejected by the court, which ruled "in a case of a conspiracy, it is not necessary that every accused should be present at the spot".
"As per Neon (an anonymous witness), Amanullah had said that the accused will move out on 23.02.2020 before the riots. Witness Tariq Anwar had stated that Umar Khalid had told him to book tickets for him, specifically, for 23.02.2020 for travelling to Patna. When he said that the flight tickets are costly and he may book tickets after a few days, Umar Khalid refused and thereafter, flight was booked for Umar Khalid for 23.02.2020 at 9.30 AM," said the court, reiterating the prosecution's theory.
The court also rejected the argument that Umar was a researcher and his bent of mind could be assessed from his doctoral thesis on welfare aspects of Adivasis of Jharkhand and other writings.
"It is not a relevant consideration while deciding the bail application. If the bent of mind is to be assessed in this manner, then the co-accused Sharjeel Imam has written thesis on riots but any thesis or research work, by itself, done by any accused cannot be a ground for assessing mens rea or his bent of mind. A bail application must be decided on facts presented in the charge-sheet," said the court.
Instead of producing specific and material evidence and recoveries to prove that Umar had given a public call to incite violence and his alleged participation in funding or transporting arms to cause riots in northeast Delhi, the prosecution's case is entirely based on the statements of anonymous witnesses who have been named Bond, Robert, Bravo, Saturn, Smith, Echo, Sierra, Helium, Crypton, Johny, Pluto, Sodium, Radium, Gama, Delta, Beta, Neon, Hotel, Romeo and Juliet, apart from a few named persons.
In paragraph 10.1 of the order, the court has recorded the statement of one Tahira Daud who told the police under Section 161 of the Cr.P.C. in her statement that Muslim Students of JNU (a Whatsapp group allegedly created in December, 2019) was formed and she was added with the main purpose of coordinating in the protest and chakka jam (road blockade) in Delhi and other parts of India and to take participation in such protest.
The court went on to record from the chargesheet that a meeting was organised in Jangpura on December 8, 2019, which was attended by Yogender Yadav, Umar Khalid, Sharjeel Imam, among others. Tahira told the police that Umar extended his support to Imam's call for a chakka jam.
It then recorded protected witness Bond, saying that Umar had asked Imam on December 13, 2019 at Jamia Millia Islamia to stage a chakka jam at Shaheen Bagh. Asif Iqbal Tanha and Saiful Islam (both are students of Jamia Millia Islamia) were asked to organise the blockade at the university's gate numbered seven.
The court recorded the witness's statement that Umar gave a call to overthrow the government when "the time is right".
The contention of the defence counsel that "Bond's statement is not reliable at all and is also recorded after a delay" was not entertained by the court, which added it cannot be taken at this stage as the statement of witnesses have to be taken as they have given. "Reliability or otherwise of the statement of a witness is to be tested at the stage of trial," said the court.
In paragraph 10.2, it then recorded Bond's statement that the Jamia Coordination Committee (JCC) used to hold "secret" meetings. In one such meeting, they allege, Umar instructed that women and children be used as shields at protest sites to avoid any police action.
In paragraph 10.4, the court referred to anonymous witness Bravo's statement, which said that a group, namely Jamia Awareness Campaign Team (JACT), was formed on December 22, 2019 for mass mobilisation of locals. It had influence over all the protest sites, which mushroomed later.
A meeting of the JACT was organised at the Indian Social Institute on December 26, 2019, and it was attended by Umar.
But the defence's rebuttal that witness Bravo' statement is ex-facie "false" for various reasons was found by the court to be "not relevant" at the stage of bail.
In the same paragraph, the court recorded witness Saturn who said that Umar Khalid, Khalid Saifi, and Tahir Hussain held a meeting at the office of Popular Front of India (PFI) at Shaheen Bagh on January 8, 2020.
The defence highlighted that the witness cannot be believed as he was not believed in FIR No. 101/2020 (P.S. Khajuri Khas) and there are contradictions in his statement under Section 161 Cr.P.C. and 164 Cr.P.C. However, despite taking note of the contradiction, the court concluded that Umar Khalid, Khalid Saifi and Tahir Hussain met at the PFI office at Shaheen Bagh on January 8, 2020.
In paragraph 10.5, based on the statements of witnesses Smith, Echo, and Sierra, the court referred to a "conspiratorial meeting" between Umar Khalid, Pinjra Tod members, and others. The alleged meeting took place on the intervening night of January 23/24, 2020 at Seelampur, close to the Jafrabad protest site.
Rejecting the objections raised by the defence, the court relied on the prosecution, which alleged "it was decided to induce local women of Seelampur to start stockpiling knives, bottles, acids, stones, chilly-powder and other dangerous articles to be used in rioting. The plan was to escalate the protest to the next level of the chakka-jam and then riots".
The court said though the counsel representing Umar referred to some "minor inconsistencies", which the witness will be required to explain during the trial, there is "incriminating material" against the accused in the statement of the said witnesses.
The court did not examine whether there was any material details as to what was said and what made the alleged meeting "conspiratorial". There seemed to be no scrutiny of the witnesses' statements, and it was said that the defence's arguments would be discussed during trial.
In paragraph 10.7, referring to the statements made by Helium and Crypton, the order said Umar said Bangladeshis should fight against the CAA.
In paragraph 10.11, the order referred to a public speech by Umar wherein he allegedly talked about the proposed visit of the then United States President Donald Trump. But it did not discuss the content of Umar's exact statements.
In paragraph 10.14, the court referred to a statement wherein Bond said that he was told by Asif Iqbal Tanha that Umar and Nadeem Khan had instructed that the riots start. Again without any scrutiny of the hearsay evidence, the court concluded that the riots were "pre-planned", and not spontaneous.
In paragraph 10.23, the court referred to a "flurry" of calls that took place between a number of people, including Umar, after the riots broke out. Again, the content of these calls are unknown. The defence contended that "calls must not be looked at in isolation as a normal pattern of calls must also be studied". The court agreed that the principle is correct; however, it said "the calls still show how different accused persons are linked and talking to each other after the riots have begun and more importantly, most of the accused persons involved reached a common place".
In paragraph 12.3, the court recorded Gama's statement that Umar Khalid gave "provocative statements". But what was exactly said in the alleged statements? That remains unknown.
In paragraph 12.4, the order referred to a statement made by Delta that Umar delivered "a speech against the government". Is speaking against the government a crime? There is no explanation with regard to the same.
In paragraph 12.5, the court recorded Saturn as saying that "Tahir Hussain also went to Shaheen Bagh on 08.01.2020 where Umar Khalid and Kahid Saifi were also present". Even if it is considered to be true, how does meeting someone become a crime and attract the UAPA? Again the order does not answer such obvious questions.
In paragraph 12.6, the court has recorded witness Helium stating that Umar said that the Bangladeshis should be taught to fight against the CAA. The exact content of his statement in question is missing.
In paragraph 12.7, the order recorded protected witness Beta as stating that they saw a video of Umar wherein the latter gave a speech in Amravati in Maharashtra. He said in the speech, alleges Beta, that Trump is coming to India and "they have to show their power by coming on to the roads".
The video in question was telecast on Republic TV and News18 after it was partially tweeted by BJP IT cell head Amit Malviya. The complete speech punctures the police theory.
Again anonymous witness Echo has been recorded, stating that Umar told co-accused Gulfisha Fatima, who was active at the Jaffrabad protest site, that "speech will not work; they all have to understand that the government is against Muslims and they will have to spill blood".
The statement prima facie appears to be vague and free of material evidence.
So, the prosecution's case against Umar is based on his association WhatsApp groups mentioned above, participation in several meetings (particulars of which are provided by anonymous witnesses in vague terms) and a series of calls between him and others when the violence began.
There has been no analysis of the witnesses' statements. There is no material evidence to make the case rock solid. Still, he was denied bail.
The defence submitted the statements of witnesses are either "false" and "delayed" or "contradictory", could be "concocted" and "coerced". And therefore, it should not be relied upon.
But again the court reiterated, "At this stage of bail, the statements of all the witnesses have to be taken at face value and their veracity will be tested at the time of cross-examination."
Advocate Gautam Bhatia, a scholar of constitutional law, called the bail order a "judicial stenography" and an approach to keep people in jail for a decade — waiting for trial.
"…[T]he denial of bail to Umar Khalid is based entirely upon an act of judicial stenography: the court reproduces the statements in the chargesheet, refuses to examine them on their own terms, refuses to engage with the defence's examination of them, and finally — and most importantly — fills in inferences of guilt where the prosecution's case is vague or missing particulars," he wrote.
The UAPA precedent, he said, does not require the court to act as the "prosecution's stenographer" in bail cases: not even the Supreme Court judgment in the notorious Watali judgment goes that far.
"There are numerous High Court judgments, which the lower court failed to engage with, that articulate the basic common sense that a UAPA case does not require a judge to act as if they have undergone lobotomy just before writing the judgment," he argued.
He said the implications of the order are both obvious and frightening.
"The bail order takes us to a position where the prosecution can write literally anything in its UAPA chargesheet — which is vague, inconsistent, implausible, ex facie false and laughable if presented and tried to make you believe them. We have a bail order that reproduces those statements, park all objections for a trial that will not finish for the next 10 years and ensure that people remain in jail all that time. This is the embodiment of a broken criminal justice system, broken not just by the UAPA and its language but broken by judges who, somewhere in all this, seem to have forgotten the judicial role as being one that tempers and confronts state abuse," he added.
First published by Newsclick.