On Monday, 22nd April, the Delhi High Court dismissed the bail plea of Salim Malik alias Munna in the anti-Hindu Delhi Riots of 2020. He is one of the accused in the larger conspiracy matter for the riots. In the charge sheet filed against Salim Malik in the riots case, it was mentioned that Salim was present at the secret meetings which took place days ahead of the Delhi anti-Hindu riots on the 24th of February 2020.
Salim Malik was represented in the Delhi High Court by Salman Khurshid. Salman Khurshid is still a senior leader of the Congress party led by Rahul Gandhi and Sonia Gandhi.
The bench of Justice Suresh Kumar Kait and Justice Manoj Jain held, “In the present case, there is enough material on record which clearly indicates that the appellant herein was a co-conspirator and has committed the offence for which he has been charge-sheeted”.
“This Court finds that complainant Constable Sunil in the first supplementary charge-sheet and the other prosecution witnesses in their statements, have named the appellant-accused, who had allegedly hatched a conspiracy of destroying the CCTV cameras installed in the Chand Bagh area, and he had not only delivered provocative speeches, aiming at destroying the religious harmony which were against the unity and sovereignty of the country. Also, he was instrumental in providing financial assistance to facilitate commission of riots”, the High Court observed.
The court observed that in light of the statements made against Salim Malik by witnesses and the evidence against him, the prosecution’s case against him is ‘Prima Facie true’.
The court further said, “Consequently, embargo created under Section 43-D(5) of UAPA, automatically gets attracted. Moreover, at the stage of consideration of bail in UAPA, the Court is not required to do extensive or comprehensive evaluation of the evidence and is required to form opinion on the basis of broad probabilities. The evaluation is essentially based on surface-analysis of the probative value of the material so collected. The Court is, thus, required to assess whether there are reasonable grounds to believe that the accusation made against any such accused are „prima facie true‟ or not”.
Setback for Umar Khalid
As Salim’s bail has been rejected by the Delhi High Court, it will make it difficult for another accused in the matter, Umar Khalid whose bail application is currently pending in Karkardooma District Court in Delhi. The judgment passed by the two-judge bench comprising Justice Suresh K Kait and Justice Manoj Jain will set a precedent in the larger conspiracy case making the arguments more difficult for Khalid’s counsel.
Notably, in the last hearing, the public prosecutor informed the court how Umar Khalid has a habit of creating narratives in media and on social media. Furthermore, the prosecutor informed the court while Umar Khalid was in jail, several media houses and individuals indulged in creating a narrative in his support on social media and media. Thus, releasing Umar Khalid on bail was opposed during the hearing.
Umar Khalid was also present at the said meeting where Salim was present. Combined with Umar Khalid’s habit of creating a narrative, the High Court’s judgment can tilt the scales against Umar Khalid’s prospects for release as this case has significant social and political ramifications. The matter is scheduled for hearing next on 24th April.
Further, the arguments made by Salman Khurshid in the case of Salim Malik are similar to those made by Tridip Pais defending Umar Khalid in the District Court. The High Court in this case held that if the accusations appear prima facie true, then the embargo created under Section 43-D(5) of UAPA automatically gets applied. The High Court also cited the Gurwinder Singh case in the Supreme Court which held that in UAPA cases, bail is the exception and jail is the norm.
It must be recalled that when Kapil Sibal had withdrawn Umar Khalid’s bail petition from the Supreme Court, OpIndia had analysed the reasons behind the possible reasons behind the said withdrawal. One of the reasons we analysed was the passage of the Gurwinder judgement by the Supreme Court.
The Court noted in the Gurwinder case that Section 43D(5) of the UAPA alters the usual bail provisions for offenses under Chapter IV and Chapter VI of the UAP Act. It mandates that a Special Court cannot grant bail without giving the Public Prosecutor a chance to be heard. Additionally, if the court, upon reviewing the case diary or the report under Section 173 of the Code of Criminal Procedure, 1973 (CrPC) finds reasonable grounds to believe the accusations are prima facie true, bail must be denied.
The court also observed that this provision of UAPA sets the law apart and makes bail the exception, not the norm. The Supreme Court set two crucial standards for bail in UAPA matters:
- The court is supposed to assess the case carefully and apply a low prima facie standard while assessing the case. If the charges appear prima facie true, bail must be rejected by the court.
- If the prima facie standard is not met, then the court must consider other factors such as flight risk, tampering with evidence etc.
“On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offense under Chapter IV or VI of the UAP Act
1.2 Such examination should be limited to the case diary and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)?”, the Bench observed.
The Court added, “on a consideration of various factors such as nature of the offense, length of punishment (if convicted), age, character, the status of accused, etc., the Courts must ask itself:
2.1 Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused tampering with the evidence?
2.3 Whether there is an apprehension of the accused influencing witnesses?”
In 8 other points, the court also referred to the guidelines laid down by the Supreme Court as far as the tests that the court must apply when hearing bail applications in UAPA cases:
- There should be evidence to establish the accused’s complicity in the crime unless specifically rebutted.
- Once charges are framed, it is to be assumed that strong suspicion was found by the court for such charges to be framed.
- Elaborate dissection of the evidence is not needed by the court at this stage. The court must have reasons to accept or reject bail, but there is no need for a detailed evaluation of evidence.
- “The Court is merely expected to record a finding based on broad probabilities regarding the involvement of the accused in the commission of the stated offense or otherwise.”
- The provisions of bail being an exception and not the norm apply right from the stage of filing the FIR.
- The totality of the material must be considered, no piecemeal analysis must be done.
- The admissibility of documents relied upon by the Prosecution cannot be questioned.
The full analysis of the case can be read here.
With this High Court judgement denying bail to Salim Malik, the arguments made in favour of Umar Khalid in the District Court get summarily negated.
Salim Malik informed investigation agencies about his role and how riots happened
In his statement during the investigation, Salim Malik informed the investigation agency how the violence was orchestrated in Chand Bagh, Delhi. He disclosed a meticulously planned series of events leading to the violent protests in the area. In his statement, he confessed to his involvement in organising and escalating the protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC).
Salim revealed how a detailed plan was in place to escalate the protests to a violent level, aiming to create chaos and disrupt the public order. Initially, peaceful protests were organised against CAA and NRC. However, with time, the plan evolved to include blocking roads, attacking police personnel and damaging property. Salim also named several others who were involved in the protests leading to the violence including Suleman Siddiqui and DS Bindra. He said, “To incite violence in the protests and to take advantage of the occasion of the visit of American President Donald Trump to India on February 24-25, 2020, we called a meeting at the Chand Bagh protest site on the night of February 16-17, attended by people from other protest sites as well. In this meeting, apart from me, Athar, Salman Siddiqui, Shadab, Jahid, Gulfisha, Shreya, Upasana, Zakir, Devangana, Natasha, Chaitanya, Nazam, Ayub, Saleem Khan, etc, were present.”
Admitting to his role in the violence, Salim said, “On the morning of February 24, in the protest, I, Salim Khan, Salman Siddiqui, Dr. Rizwan, Athar, Shadab, Ayub Malik, Upasana, Tabassum, Ravi, and many women, men, and children were present. Taking advantage of the atmosphere, I incited the people present in the protest with provocative speeches, according to the previous plan.”
Furthermore, Salim revealed how there were discussions among the protest organisers to use weapons including sticks, stones, chilli powder, and petrol bombs against the police and the public. The plan was to block roads, disrupt public life and incite violence at the time when former US President Donald Trump was in India, to create pressure on the government to withdraw CAA and NRC.
