A Delhi Court refused bail to so-called activist and former JNU student Umar Khalid on 24th March in connection with a case pertaining to the bigger conspiracy in the 2020 Delhi riots, involving offences under the Indian Penal Code and UAPA (Unlawful Activities Prevention Act). The order was issued today by Additional Sessions Judge Amitabh Rawat.

The FIR filed against Khalid includes serious allegations such as Sections 13, 16, 17, 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 of 1984. He is also charged with a number of offences listed in the Indian Penal Code of 1860.

The bail application of Umar Khalid, represented by Trideep Pais, Ld. Senior Advocate, filed under Section 437 of Code of Criminal Procedure (CrPC) read with Section 43­D(5) of Unlawful Activities (Prevention) Act (UAPA) on 6th September 2021.

The court perused written submissions, oral submissions and annexes submitted by the prosecutor and the defence counsel before denying bail to accused Umar Khalid.

Here are the arguments by Umar Khalid, accused in the Delhi anti-Hindu riots, during his bail hearing

The defence counsel claimed that Umar Khalid is a “scholar” and a “researcher” and had committed no crime as alleged by the prosecutor. They claimed that Umar Khalid’s bent of mind was assessed on the basis of his doctoral thesis on “Contesting claims and contingencies of the rule on Adivasis of Jharkhand” and several other academic writings.

The case of the prosecution, it was alleged, was built on the basis of disclosures that were inadmissible in court and the statements of witnesses which were either obtained by coercion or suffered material inconsistencies. They also alleged that certain statements from witnesses were “blatant falsehood”. The defence claimed that on the 29th of August 2020, an acquaintance of the accused was forced to sign a pre-drafted witness statement on the threat of a Delhi Police officer to the effect that the only alternative to not signing the statement is that the witness would be arrested. Umar Khalid had written a letter to the Commissioner of Delhi Police on the 1st of September 2020 regarding the same.

The FIR was called an “omnibus FIR” by the defence, claiming that it was an open-ended FIR on the basis of which any person who opposed the CAA/NRC were sought to be falsely implicated. Umar Khalid, the prosecution said, was not present in Delhi from the 23rd of February to the 25th of February 2020 (which is when the Delhi anti-Hindu riots took place) and that no case under UAPA has been made out, including the fact that he indulged in any terrorist activity (within the meaning of Section 15 of UAPA). The defence also said that the prosecution has not proved that Umar Khalid is connected to any banned organisation or raised money for any terrorist activity.

Since the investigation is complete in the case and the charge sheet has also been filed, Umar Khalid contended that there was no “useful purpose” to keep him in jail since the trial is going to take a long time.

No physical evidence was found against Umar Khalid and no other evidence has also been found that connects Umar Khalid to the violence that broke out in Delhi in February 2020. Umar Khalid is not visible in any CCTV footage, video footage and neither has any public or police witness made any statement that places him at the scene of the violence.

The fact that the prosecution has called Umar Khalid the “mastermind” or “remote supervisor”, according to the prosecution, is a way to fill the lacunae in the case itself. About the “flurry of calls” made by Umar Khalid on the 24th of February, the prosecution has said that it establishes how Umar Khalid was controlling the violence, however, the defence has claimed that other evidence was withheld that could potentially puncture this theory. The prosecution said that the DPSG group was not a homogenous group and it had people from several walks of life, ideologies etc and the conversation revolved around “de-escalating the violence”.

The defence said that the prosecution has used cell tower location to say that Umar Khalid was in several places where the conspiracy was being hatched, however, it is only indicative of his location and cannot pinpoint the exact location. Further, the defence said that “it is established law” that “the mere presence of a person at a place is not proof of the commission of an offence by the person at the said site”.

It was also rejected that Sharjeel Imam is a disciple of Umar Khalid and that they started several WhatsApp groups together. The defence also said that Umar Khalid had no control over the WhatsApp groups of which he was a part of.

The defence also made the following assertions:

1. Nothing to show that Sharjeel Imam constituted the WhatsApp group Muslim Students of JNU (MSJ) at the instructions of Umar Khalid
2. Nothing to show that Sharjeel Imam was introduced to Yogendra Yadav by Umar Khalid in the protest organised by United Against Hate (UAH) at Jantar Mantar.
3. The meeting organised on the 8th of December 2019 at Jangpura does not establish any conspiracy.
4. Umar Khalid did not attend any protest organised by CAB Team at Jantar Mantar.
5. Witness statement by one “BOND” is false as he did not meet Umar Khalid on the 15th of December 2019.
6. There is nothing to show that Sharjeel Imam established the Shaheen Bagh protest at the instruction of Umar Khalid.
7. No witness statement to show that Umar Khalid met with Meeran Haider and Khalid Saifi at Shaheen Bagh.
8. It is incorrect that the Indian Social Institute was zeroed in as the venue for the first meeting of organisations and individuals who were running anti-CAA protests and they realised that they need “secular cover, gender cover and media cover”.
9. The meeting at Seelampur on the 23rd and 24th of January is false and 6 witnesses are lying.
10. The said other witnesses were also lying or had inconsistencies in their statements.
11. No evidence to support that Nadeem Haider and Umar Khalid made all the decisions of JCC and the witness is lying.

Arguing that bail is the norm and detention is the exception, the defence stated several cases and precedents to demand bail for the accused.

What the prosecution argued against Umar Khalid, accused in Delhi anti-Hindu riots

The prosecution has consistently argued that the Delhi Riots were a deep-rooted conspiracy hatched after the passing of the resolution by the Cabinet Committee to present CAB in both Houses of the Parliament on the 4th of December 2019. He said that the charges levelled are prima facie correct and that in the entire conspiracy, there were various organisations like Pinjra Tod, AAZMI, SIO, SFI, etc., through individuals who participated. There was a centrality of JCC in the eco­system. As part of the conspiracy, 23 (24×7) protest sites (against CAB) were created in Muslim majority areas close to mosques/mazaar and close to main roads. Before the major riots of February 2020, a replica of the riots took place in December 2019 on a lower scale but with similar characters and modus­operandi.

It was the Chakka Jam idea that gave rise to violence against the public and police officials. The prosecutors further revealed an interesting facet. It was to give the protests a “secular colour” why Hindu sounding names were chosen for several of the protest sites and the intention was to spread violence against non-Muslims and police officials.

The entire conspiracy of the violence was elucidated by the prosecutor. A summary of that can be read here, as detailed in the bail hearing of another accused, Congress councillor Ishrat Jahan.

The prosecution made several other arguments, as listed below:

1. The individual roles of conspirators are not to be seen, rather, a holistic view is to be taken while looking at a prima facie involvement of the conspirators in the chain of conspiracy.
2. At the stage of bail, the evidence collected against the accused must prevail unless contradicted or disproved by other evidence. The evidence currently shows the complicity of the accused.
3. Elaborate dissection of the evidence is not required to be done at this stage.
4. UAPA has been rightly invoked and the actions of Umar Khalid come under the ambit of Terrorist Activity.
5. The prosecution detailed how the first phase of the riots in 2019 did not pan out how they had hoped due to a lack of synergy and various other factors, detailing how it was a test run.
6. The protest was not organic but a well-planned one. It was given the facade of an organic protest. He detailed how the conspiracy was initiated by Sharjeel Imam and Umar Khalid, the formation of JACT, DPSG, JCC and other aspects which have also been detained in the charge sheet.
7. The protest was not only given an organic facade, but also the facade of being led by women and children. The prosecutor detailed how women and children were stealthily transported from Jahangir Puri to Jaffrabad via Shaheen Bagh and a cover-up action was also initiated by the DPSG group.
8. The date was intentionally chosen coinciding with the visit of President Donald Trump.
9. The contents of the DPSG group were highlighted in detail and also the fact all the CCTV cameras were systematically dislocated ahead of the violence. The flurry of calls and the subsequent deletion of the group was also spoken about in detail.
10. There was an elaborate conspiracy on the basis of which all the entry and exit points of North-East Delhi were blocked by the conspirators.
11. The prosecutor then argued that in this case, the bar of Section 43D (5) UAPA for grant of bail would apply as prima facie allegations against the accused are true and the further embargo is created due to Section 437 (1) Cr.P.C.

The prosecutor, arguing for denial of bail to Umar Khalid, made the following legal points:

1. Section 437 Cr.P.C places an additional condition before releasing a person on bail if there are reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.
2. The present case also involves the applicability of the Unlawful Activities (Prevention) Act. Section 43D of UAPA was invoked by the prosecutor, saying that if the court believes, after the perusal of the charge sheet, that the charges against the accused are prima facie true, then the accused shall not be released on bail.
3. The prosecutor detailed that for constituting a conspiracy, a meeting of minds of two or more persons for doing an illegal act or any act by illegal means is the condition and it is not at all necessary that all the conspirators must know each and every detail of the conspiracy. It is also not necessary that every one of the conspirators must take an active part in the commission of each and every conspiratorial act. The agreement among the conspirators can be inferred by necessary implications. Mostly, the conspiracy is proved by circumstantial evidence as the conspiracy is seldom an open affair. The existence of the conspiracy and its object are normally deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy.
4. Several judgements were cited to make these arguments.

What the court said while denying bail to Umar Khalid, accused in Delhi anti-Hindu riots

The court said that the elaborate dissection or examination of the merits of the case is not required at this point. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. The court said that one cannot discard the charge sheet at this stage and that is a decision to be taken at trial. The question is whether there are reasonable grounds for believing that the accusations made against Umar Khalid are prima facie true. That will have to be answered by keeping in mind the totality of materials including the one presented along with the police report.

The court said that a lot of adjectives have been used in by the prosecution and the defence, and the court shall not concern itself with those but focus only at the facts at hand.

The court said that the prosecution’s case is that the conspiracy began after the passing of the Citizenship Amendment Bill (CAB) by the Cabinet on 04th December 2019. It continued to develop and culminated in the horrific riots on 24th February 2020 in North­East Delhi. The first person who acts after the 04th of December 2019 is accused Sharjeel Imam when Muslims Students of JNU is formed on 05/06 December 2019 and propagates the idea of disruptive chakka­ jam.

While talking about the defence’s case that Chakka Jam is a legitimate way of protest, the court said that it must look at the speeches made by Sharjeel Imam on 13th December 2019 at Jamia University, which reflects that the Chakka Jam was a part of the conspiracy.

The court said that in the speech, Sharjeel Imam spoke about doing Chakka Jam in 50 cities across India and alluded specifically to Muslims doing it. Drawing a comparison, the court said that when an ordinary Chakka Jam is orchestrated, the main objective is to highlight the cause by creating minor inconvenience, but in this case, the Chakka Jam was desired with a specific objective.

“The speech says that the cities can be stopped by the Muslims. He then talks of disruption and the needs to organize. He then states the goal as chakka­jam where milk supply or even water is stopped in the mohallas of Delhi. Sharjeel Imam also gave a speech on 23.01.2020 at Gaya, Bihar where he tells a difference between protest and blocking the highways and lauds complete blockage and disruption of services between Delhi and Noida as a success and himself says that it is the first step and necessary step“, the court said.

The court further said that while the protest against CAA/NRC happened across the nation, only Delhi saw the kind of large scale violence that it did. On the 13th of December 2019, Sharjeel Imam had specifically mentioned Delhi in his speech, saying that even if a flyover falls in Delhi since it is the national capital, the whole world would know about it.

The court said, Also, Mr Donald Trump, the President of the United States of America was to visit Delhi on the 24th of February 2020. The happening riots on the same day when the President of the USA was in Delhi and the whole world media was there to cover it, does not appear from the charge­sheet to be mere co­incidence. In fact, there is a mention of the visit of the President before the riots began. Accused Umar Khalid in his Amrawati speech specifically made a mention of the said visit by the President of USA on 24th of February 2020 in Delhi and the need to show to the world with media all around. Various witnesses also referred to enhanced activity after the visit of the President of the United States of America was announced. Sharjeel Imam in his Gaya speech of 23.01.2020 while again referring to the blockage of highways in Delhi, says that they will paralyze the government. 

Another interesting aspect was mentioned by the court. Umar Khalid made a reference to Delhi saying that if violence erupts and the government deploys the army in Delhi, being the national capital, it would be a humiliation for the government of India and not the Muslims (presumably the Muslims who would be creating the violence).

A witness called Tahira Daud also said that on the 5/6th of December, when the WhatsApp group was made by Sharjeel Imam (Muslim students of JNU), she was added to the group. She attested that the main purpose of the WhatsApp group was to coordinate Chakka Jam in other parts of India and specifically in Delhi.

The court then goes into the details of the timeline where Sharjeel Imam had started distributing pamphlets at the Masjids against CAA/NRC, the coordination between Sharjeel Imam of MSJ with Arshad of Students of Jamia (SOJ) for distribution of pamphlets on 06.12.2019, the protest marches by United Against Hate attended by Umar Khalid, Yogendra Yadav etc and the fact that right after the meeting, Sharjeel Imam posted a message on the 7th December in the core team group of Students of Jamia about massive mobilisation, media collaboration and call to protest.

The court also observed that the Facebook post of SOJ from December 2019 to February 2020 stated that the Law of Allah is above all else, La Ilaha Illalah Muhammadur Rasulullah is against secularism, democracy and nationalism.

Broad timeline of the conspiracy and witness statements that implicate Umar Khalid in the Delhi anti-Hindu riots conspiracy as detailed in court

About the meeting on the 8th of December 2019 where Yogendra Yadav, Sharjeel Imam, Umar Khalid etc were present, a witness has stated that everyone was in complete support of Chakka Jam and it was on the same day that the CAB group was formed.

Thereafter, Sharjeel Imam visited AMU on the 11th of December 2019 propounding Chakka Jam. On the 12th, he created another group and asked students of AMU to reach Jamia to participate in and support the Parliament March which was called by Asif Iqbal Tanha. There, seditious speeches were delivered by Sharjeel Imam asked for a disruptive chakka­jam which included disruption and stoppage of supply of water and milk to Delhi. Consequently, violence/riots took place and FIR No. 296/2019, P.S. Jamia Nagar was also registered. During the violence, police were attacked and various incidents of violence took place in the month of December 2019.

Witness BOND, who the defence dismissed as “unreliable”, said that Umar Khalid had introduced Sharjeel and others as his brother. He also said that this was a Hindu government that was against Muslims.

On the 17th, another group was made by Safoora Zargar called JMI Coordination Committee. This group was made using a SIM card that was acquired with fake and forged documents.

Witness BOND further said that there were several secret meetings held by the JCC and in that meeting, 20-22 areas were decided for Chakka Jam and other protests like Shaheen Bagh. According to the witness (BOND), Asif and others were getting their instructions for Umar Khalid.

JACT was formed on the 22nd of December 2019 with the campaign for mass local mobilization. It, later on, covered all the places where the protest sites were later on mushroomed and developed.

On 26.12.2019, a meeting took place at Indian Social Institute (ISI) Lodhi Colony, attended by Umar Khalid, Nadeem Khan, Khalid Saifi, Rahul Roy, Sabha Dewan and others. In this meeting, witness BOND said that it was decided that the protests should be women-centric and it was two days later, that the DPSG group was formed.

In the bail application of Umar Khalid, it was also revealed that the meeting that took place in Shaheen Bagh on the 8th of January 2020 was corroborated by Witness Saturn. The meeting was between Umar Khalid, Khalid Saifi and Tahir Hussain at the PFI office at Shaheen Bagh.

On the intervening night of the 23rd and 24th of January 2020, a secret meeting was held between Umar Khalid and Pinjra Tod members in which it was decided that the protests should be kept women-centric. This was corroborated by 3 witnesses. It was also corroborated by witnesses that the plan was to escalate the Chakka Jam and then cause riots. Further, it was decided that local women could pile up chilli powder, knives, bottles. acids, stones etc.

While Sharjeel Imam continued to propagate violence and Chakka Jam on the 24th of January 2020, on the 6th of February, a protest site was developed in Jahangir Puri. On the 8th of February, Umar Khalid went there and delivered a speech inciting violence. Two witnesses, Helium and Cryton, attested to the fact that Umar Khalid was demanding the involvement of Bangladeshi Muslims against CAA and NRC.

On the 13th, Rahul Roy and Apoorvanand changed the course of the protest to an artist-based protest.

Another witness, Johnny, attested that there was a plan to do riots after the protests. This discussion was held on the 15th of February 2020.

It was after this, on the 17th of February, when Umar Khalid delivered a speech at Amravati, mentioning the visit of USA President Donald Trump.

At the same time, after the secret meeting and while Umar Khalid was delivering his speech, in the DPSG group, one Owais Sultan Khan was talking about how Athar is planning to create violence and that it should not be allowed. After this message, the DPSG group went silent from 18th to 21st February and no explanation was offered or comments made about Athar wanting to create violence.

Another statement by Witness Pluto details the nefarious plans and how people were paid to create violence and riots.

Before the riots, on the 20th/21st of February 2020, 5 people gave Pluto Rs 10,000 for “biryani”. Some money was given in advance and the rest was paid by Ayyaz. On the same day, Biryani was delivered and Athar told Pluto that Ayyaz would pay him the money. They started eating the biryani at this point. Athar was saying, according to Pluto, that the time had come to burn Delhi. Rahul Roy had called him and all the preparations for the riots were done – arms, petrol etc had been filled.

Pluto said that Athar was telling people that “their issue will not be settled till 100-200 people are killed and 100-200 places are arsoned”.

Thereafter, on the 22nd, protestors from Mecca Madina Masjid moved to Jafrabad and blocked the roads completely and immediately after this, a meeting of JCC is called to escalate the protests.

Witness BOND testified that on the 22nd, right after the Chakka Jam, a secret meeting of the JCC was held and instructions were received from Umar Khalid that riots have to be initiated immediately. Umar Khalid had also told Saiful that once shots are fired or bombs are detonated during the riots, they should leave the spot immediately.

Another witness, Sodium, has spoken extensively about a meeting that took place on the 22nd of February, right before the riots took place.

In this meeting, it was discussed that just like Jafrabad, other places had to be blocked as well so that riots and take place and the government can withdraw the “black laws”. It is to be kept in mind that on the 22nd of February, Owais Sultan had mentioned in the DPSG group that Pinjra Tod members had categorically stated “Kafan Baandh ke aaye hain; aur joh humare saath nahin, who desh ka gaddar hai” in response to local women saying they want to protest peacefully.

On 23rd February 2020, the day the violence started, Janhavi, Rahul Roy and Tabrej are involved in the clandestine transportation of a large number of people, mainly women and children from Jahangir Puri to Jafrabad via Shaheen Bagh. These women are received by Natasha, Devangana and Gulfisha at Jafrabad and they are the ones who initially do the stone pelting at police and others.

Another witness, Radium, spoke about the destruction of CCTV cameras.

In this meeting, the witness said, Athar was saying that one Nadeem is not happy at the scale of the riots and that it is being made difficult due to the presence of CCTV cameras. He said either the cameras should be destroyed or covered. Thereafter, Athar spoke to others to destroy the CCTV cameras. Everyone was apparently in agreement.

The fact that the witness was not lying was corroborated by the fact that several CCTV cameras were destroyed on the 24th and this act has also been recorded.

The court categorically said:

The footage filed by the prosecution does show a concerted and premeditated effort of mobilization of rioters who are armed and who ultimately blocked the Main Wazirabad road and attacked police personnel in the most brutal manner. Accused Mohd. Saleem Khan is seen in the mobilization carrying a stick like a thing and dislocating the camera. His presence in the entire footage of the entire area where armed people are calculatingly moving forward towards the main road for the nefarious end of rioting shows his involvement and design. Moreover, the footage also shows some rioters carrying National Flag.

On the 23rd of February, Owais Sultan asked the DPSG group why the messages about Chakka Jam were deleted from the group. When the violence had erupted, Anas Tanvir (member of DPSG and a lawyer) posted the message, “I am very disturbed with the development that has taken place since yesterday and to me, it seems like a concerted plan. So I really need to know whether this group is ready to identify and condemn organizations and individuals who instigated this violence. As far as I am concerned I have identified all those who shared the call for action and protest posters. I will not be leaving anyone who’s behind all this. We need to deescalate”.

After riots began on the 24th, a flurry of calls and messages were exchanged, including between Umar Khalid and Natasha of Pinjra Tod. Several accused reached a common place to meet. The first arrest was made on the 11th of March and after that, people were asked to delete their messages in the group. The court said that it is true that firearms were collected and different roles were assigned to different people in the furtherance of this conspiracy.

The court’s final observations while denying bail to Umar Khalid

The court said that according to the charge sheet, prima facie, a conspiracy did exist for chakka jam and riots.

About Umar Khalid, the court said that his name finds mentioned repeatedly in the charge sheet and he was an active member – whether it was the protests, being members of WhatsApp groups, his speeches or the flurry of calls.

The court said:

There are statements of numerous witnesses including protected public witnesses, who have given statements recorded both under Section 161 Cr.P.C & 164 Cr.P.C highlighting the incriminating material against the accused Umar Khalid. From a broad reading of all the statements, the role of the accused Umar Khalid in the context of conspiracy and riots is apparent. Ld. Counsel for the accused had submitted that the statements of witnesses are either false being delayed or contradictory or could be concocted or coerced and should not be relied upon. However, 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 cross­examination.

The court said that there might be some inconsistencies in the witness statements, but at this point, cumulative reading of the statements has to be undertaken. The other relevant portions of the charge sheets also have to be taken into consideration.

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 said that while it is true that Umar Khalid had not written too many messages in the DPSG and MSJ groups, the fact that he was a part of these groups created for the specific purpose of protests and violence has to be taken into consideration.

Another contention raised by the Ld. Senior Advocate was that accused Umar Khalid was not present in Delhi during the time of riots. In this regard, in a case of a conspiracy, it is not necessary that every accused should be present on the spot. Moreover, as per witness Neon, Amanullah had said that 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, then Umar Khalid refused and thereafter, a flight was booked for Umar Khalid for 23.02.2020 at 9.30 AM.

The court concluded that on the perusal of the charge­sheet and accompanying documents, for the limited purpose of the bail, I am of the opinion that allegations against the accused Umar Khalid are prima facie true.