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Umar Khalid, conspiracy to delay trial only to use it to demand bail, ‘change in law’ argument and more: Breaking down Delhi Court order denying bail

Was there a legal strategy in place between Umar Khalid and the other co-accused who were out on bail? Was the strategy to delay trials by those out on bail so those who have been denied bail, like Umar Khalid, can then claim that they deserve bail on the ground that the trial was being delayed? It certainly seems so.

On the 29th of May 2024, the Sessions Court dismissed the bail application of UAPA accused Umar Khalid. Umar Khalid is in jail for being one of the main conspirators of the Delhi anti-Hindu Riots which claimed the lives of 53 people – including those like Ankit Sharma, who was stabbed over 50 times by a Jihadi mob and Dilbar Negi, whose hands and legs were chopped off before being burnt to death.

While dismissing the bail petition, the court specifically said that the predecessor sessions court and the High Court had found that the case against Umar Khalid was prima facie true. Agreeing with the finding of the two judgements, the current session court under Additional Sessions Judge Sameer Bajpai dismissed the bail petition of Umar Khalid.

Before we analyse the order passed by Additional Sessions Judge Sameer Bajpai, it is imperative to understand how the bail proceedings of Umar Khalid have progressed in the 59/2020 chargesheet (Larger conspiracy case).

Umar Khalid was arrested in September 2020. Thereafter, he filed for bail in the larger conspiracy case in July 2021. It was on 22nd March 2022 that the District Court then rejected the bail application of Umar Khalid in the conspiracy case. Thereafter, on the 20th of April 2022, Umar Khalid approached the High Court. It was on the 18th of October 2022 that the High Court dismissed Umar Khalid’s bail application saying that the case against him was prima facie true.

After the High Court rejected Umar Khalid’s bail petition, instead of immediately appealing in the Supreme Court, Umar Khalid approached the District Court again for a 2-week interim bail. The reason given by Umar Khalid was that he had to attend his sister’s wedding. On the 12th of December 2022, Umar Khalid got a 1-week reprieve to attend his sister’s wedding. From the 23rd to the 30th of December 2022, Khalid was out on interim bail.

It was only on the 6th of April 2023, 4 months after his interim bail ended, that Khalid moved a Special Leave Petition in the Supreme Court challenging the rejection of his bail by the High Court. It is pertinent to note here that Umar Khalid approached the Supreme Court a good 6 months after the High Court had rejected his bail application.

Thereafter, Umar Khalid’s bail hearing was adjourned 14 times. Out of those 14 times, 7 times it was Umar Khalid and his legal team (Kapil Sibal) who had requested the adjournment. On the 14th of February 2024, Kapil Sibal withdrew Umar Khalid’s SLP from the Supreme Court citing a ‘change in circumstances’, saying that he would “try his luck” in the Sessions Court.

A detailed analysis of the possible reasons for the withdrawal of SLP from the Supreme Court, including forum shopping, can be read here.

When the SLP was withdrawn from the Supreme Court, the specific ‘change in circumstances’ was not elaborated upon. However, the team of Umar Khalid was expected to argue based on these ‘changed circumstances’ in the Sessions Court.

In the order passed by the Sessions Court, Additional Sessions Judge Sameer Bajpai noted that Umar Khalid had not addressed specifically what these ‘changes in circumstances’ were that he wanted the court to consider. However, in his assessment based on the arguments made by defence counsel Trideep Pais, he concluded that there could be 2:

  1. Delay in proceedings
  2. Change in law

In this article, we will analyse each reason separately.

Delay in proceedings

Judge Sameer Bajpai in his 28th May 2024 order dismissed the contention that there was any delay in the trial proceedings as claimed by Umar Khalid.

“With regard to the aspect of delay, the ld. Public Prosecutor submitted and the record also shows that there is no delay in framing of charge and commencement of the trial on the part of the prosecution and infact, it is the accused persons who have moved separate applications, praying therein that before considering the matter on charge the prosecution be asked if the investigation is complete. Thus, when the delay in the proceedings is not on the part of the prosecution and infact is on the part of the accused persons, the applicant cannot take benefit of the same”, the order read.

The court here categorically states that there was no delay in the framing of the charge and the commencement of the trial on the part of the prosecution. The court observes that it was Umar Khalid who had moved separate applications, insisting that before hearing the matter on charges in the case, the prosecution must be asked if the investigation is complete. Therefore, it was Umar Khalid who had delayed the trial and not the court or the prosecution.

The court order in this case hints towards how Umar Khalid was trying to game the system by deliberately causing delays and then using the excuse of delay in proceedings to demand bail.

As far as the hearing in the Supreme Court itself is concerned, there were 14 adjournments in the hearing – 7 of which were requested by Kapil Sibal himself.

As explained earlier in this article, there were no delays in the trial itself. After the first bail application was filed in the Sessions Court, within 8 months, his bail was denied. In the High Court, it took 6 months for the High Court to dismiss bail. Thereafter, Umar Khalid took a good 6 months to approach the Supreme Court, where he himself delayed heating 7 out of 14 times. In the current sessions court round, it took less than 3 months for his bail to be rejected.

Apart from the hearing dates, there is another element where Umar Khalid and his co-accused deliberately caused a delay in the hearing in 2023.

On the 18th of September 2023, Umar Khalid, Tahir Hussain and some others submitted in the District Court that they wanted arguments on charges to begin by the prosecution. While Umar Khalid and Tahir Hussain insisted that they wanted the prosecution to start arguments on the formation of charges on the 18th of September 2023, there was an application submitted in court by UAPA accused Devangana Kalita and Natasha Narwal. When they filed the application in the case, they were out on bail.

In the application moved by Natasha Narwal and Devangana Kalita, they essentially demanded a status report on the investigation by the  Delhi Special Cell. They demanded that the Special Cell must provide a report on the status of the investigation BEFORE the arguments on charges start by the prosecution. They argued that the Police had filed 1 chargesheet and 4 supplementary chargesheets in the conspiracy case. If the arguments on charges commence, the police can file other supplementary chargesheets in the court of the hearing to “cover up” the gaps in the investigation that the defence would point out. 

What was far more interesting in their application is that they also demanded a status report as to why some of the others who featured in the conspiracy have not been made accused and questioned what the status of the investigation was against them. 

When the application was filed, a follow-up application on the same line was also filed by accused Meeran Haider, Asif Iqbal Tanha and Athar. Once these applications were filed, accused Khalid Saifi, Faizan Khan, Ishrat Jahan, Sharjeel Imam, Safoora Zargar, Saleem Malik, Shifa-ur-Rehman, Shadab Ahamd and Gulfisha Fatima adopted the same arguments – which essentially means that they became party to the application without moving an application themselves. 

At that time, SPP Amit Prasad made his opposition to the application clear in the court of Justice Amitabh Rawat. He said that the status of the investigation as far as the accused or those who were not made accused was between the court and the prosecution. “In the name of the rights of accused, the applicants cannot give such an application. When a right is not given to the accused, in garb of that they cannot file such an application”, he submitted.

“These prayers are speculative and presumptive … These prayers go on the assumption that framing of charges attains finality,” he had said. “This frivolous application was filed on the day when arguments on charge were to begin. It was on 1:45 pm suddenly, when two accused opposed the hearing. They waited for a good 40 days. They made sure to wait till the time the prosecution opens the case. They disrupt the entire proceeding and then say they don’t want to delay the trial”, the SPP had argued.

What the SSP had essentially said was that the accused who moved the application seeking a status report of investigation waited 40 days before bringing up this point, which had no legal backing, to begin with. It was on the 5th of August that the judge had said that the arguments on charges would begin on a day-to-day basis. The arguments were to start on the 11th of September. Just as the argument was about to begin, these applications were moved in a bid to delay the hearing. In fact, while the judge had directed for day-to-day hearings from the 11th of September, Asif Iqbal Tanha moved his application on the 12th of September and Devangana and Natasha moved their application on the 14th of September. 

Thereafter, it was on the 18th of September that the very same application was filed by Meeran Haider. On the same date, the same application was also moved by Athar. 

It was also on the 18th that others had submitted that they adopt the same arguments. 

While these accused tried to delay hearings, Tahir and Umar wanted the day-to-day hearings to start. Now, this would peg an important question. Why were those out on bail trying to delay hearings for those who were still in jail? The petition by Umar’s co-accused is currently pending in the High Court. However, it is important to understand here that the co-accused of Umar Khalid, who are already out on bail, deliberately delayed the hearing on charges by filing this application in 2023. This is the petition that the sessions court has referred to in its order passed yesterday, denying bail to Umar Khalid, saying that the delay was caused by the accused persons and not by the prosecution – who was ready for the trial on charges to begin.

A detailed analysis of the conspiracy to delay the trial can be read here.

This, therefore, raises an important question as far as the deliberate delay in trial is concerned. Was there a legal strategy in place between Umar Khalid and the other co-accused who were out on bail? Was the strategy to delay trials by those out on bail so those who have been denied bail, like Umar Khalid, can then claim that they deserve bail on the ground that the trial was being delayed? From the order of the court and the chronology of the events, coupled with the media narrative and the arguments made by Umar Khalid in court, it is evident that the delay in hearing on charges is being delayed by the accused themselves, so those in jail can cite ‘delay in trial’ as a reason to demand bail, despite a prima facie case being made out against them.

Change in law

Judge Sameer Bajpai while rejecting Umar Khalid’s bail plea cited a ‘change in law’ as a probably ‘change in circumstances’ for the accused to withdraw SLP from the Supreme Court and approach the district court. The ‘Vernon vs. State of Maharashtra’ which was pronounced after the order of this Court and of the Hon’ble High Court, was cited repeatedly in the court by Trideep Pais, claiming that the judgement required the court to do a surface-level analysis of the probative value of the evidence – something which was not done by the predecessor sessions court and the High Court while rejecting Umar Khalid’s bail application. Pais had said in court that the Vernon judgement was passed after bail was denied to Umar Khalid and therefore, Judge Bajpai must again evaluate the evidence in the manner that the Supreme Court has spelt out in the Vernon case.

The judge said that the court can reevaluate the case if there is a change in law, however, that there indeed has been one needs to first be established by the court.

Breaking down the judgement and the portions cited by Umar Khalid, the court enumerated the tests in the Vernon case as follows:

  1. The court said that according to the Vernon judgement if the offences as alleged against the accused fall within chapters 4 and 6 of UAPA, the court must evaluate if there are reasonable grounds for believing that the accusations against the accused are prima facie true.
  2. It has to be ascertained if based on the material, the prosecution has made out reasonable grounds to persuade the court to be satisfied that the accusations are prima facie true.
  3. Further, after discussing another case, ‘Zahoor Ahmad Shah Watali’, the SC had said that the court would not satisfy the prima-facie test unless there is at least a surface analysis of the probative value of the evidence at the stage of examining the question of deciding the bail.

Citing another judgement, the court held that it is required to record a finding based on broad probabilities regarding the involvement of the accused in the commission of the alleged offence. Judge Bajpai concluded that simply because the Vernon judgement adds the phrase ‘surface analysis’, it does not mean that the law has changed and/or there are changes in circumstances.

The court further held that the predecessor sessions court and the High Court, both had conducted a surface analysis of the probative value of evidence even before the Vernon judgement had been passed and found that a prima facie true case had been made out against Umar Khalid.

“After analyzing the law, the Hon’ble High Court discussed the role of the applicant from paras 46 to 57 of the judgment. In between, the Hon’ble High Court also observed that the ld. trial court, while dismissing the first bail application of the applicant correctly analyzed and explained the facts of the case and thereafter, the Hon’ble High Court, specifically in paras 52 to 54 itself noted all the relevant facts against the applicant”, the court said.

An important observation made by the court was:

“The Hon’ble High Court analyzed the case against the applicant and finally concluded that allegations against the applicant are prima-facie true and that the embargo created by section 43D(5) of UAPA squarely applies against the applicant and the applicant does not deserve bail”, the court said.. It is clear that the Hon’ble High Court has minutely considered the role of the applicant and declined the relief as desired by him”.

The court, while dismissing the bail application of Umar Khalid, therefore concluded that “the order of this Court as passed on 24.03.2022 has attained finality and now, in no stretch of the imagination this court can make an analysis of the facts of the case as desired by the applicant and consider the relief as prayed by him”.

What had the High Court said while dismissing Umar Khalid bail application

The conclusions drawn by the High Court while dismissing the bail plea of Umar Khalid reinforced the fact that there was indeed a larger conspiracy at play, to be carried out while the then US President Donald Trump was in Delhi, targeting Hindus. This reinforcement in turn busts the narrative that the Left cabal was trying to peddle for two years about the violence being targeted specifically at the Muslim community, branding the anti-Hindu violence as an “anti-Muslim pogrom”. 

One of the operative portions of the conclusion drawn by the High Court was not only the fact that if the charges are taken at face value, there was a premeditated conspiracy for causing chakka-jam, which was a disrupting and destructive protest, unlike usual protests in the normal course of politics, but also the fact that the attack on police personnel by women protestors, followed by others, was proof of such a premeditated plan. The court says in this portion that such a premeditated act would be prima facie covered by the definition of “terrorist act”. 

Further, the High Court observed that while the defence claimed that there is no statement by any witness which could be termed as inculpatory against him, the fact is that in the conspiracy, different people were ascribed different roles to carry about and that several witnesses have named Umar Khalid and other accused persons indulging in open discussion about violence, riots, financing the violence and acquiring weapons. The court also said that the weapons used and the manner of attack indicate that the violence was pre-planned.

In Para 65 of the judgement, the High Court had made several important observations:

  1. The court categorically said that Umar Khalid’s name finds recurring mention from the beginning of the conspiracy till the culmination of the violence in February. 
  2. He was a member of the WhatsApp groups where violence and the conspiracy itself were being discussed, including the DPSG group. 
  3. He had referred to the visit of the President of the USA in his Amravati speech – it is a part of the conspiracy charge sheet that violence was planned to coincide with this day. 
  4. When the violence started, CDR shows that there was a flurry of calls to and from Umar Khalid and other co-accused. 
  5. Witness statements indicate the active participation of Umar Khalid in the protests. 
  6. These protests culminated in violent riots in February 2020, which began with choking roads and then violently attacking police personnel and random members of the public. 
  7. Firearms, stones, acid bottles etc were used. 
  8. These protests & riots prima facie seem to have been orchestrated at the conspiratorial meetings held from December 2019 to February 2020.

While saying that the court is not commenting on the merits of the case, the court had also said that for this bail application, the charges against Umar Khalid appear prima facie true.

A detailed analysis of the High Court order can be read here.

Ayodhra Ram Mandir special coverage by OpIndia

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Nupur J Sharma
Nupur J Sharma
Editor-in-Chief, OpIndia.

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