The Delhi High Court on Tuesday issued notice on the appeal filed by United Against Hate member Khalid Saifi challenging the Trial Court order denying him bail in connection with a case alleging larger conspiracy into the Delhi riots of 2020, involving charges under Indian Penal Code and UAPA.
A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar listed the matter for further hearing on July 11.
Khalid Saifi was denied bail by city’s Karkardooma Court on April 8.
Senior Advocate Rebecca John appeared on behalf of Saifi whereas Special Public Prosecutor Amit Prasad appeared for the State.
The Bench is also hearing similar appeals filed by co accused in the FIR namely Umar Khalid and Sharjeel Imam which are posted for hearing this month.
At the outset, John submitted that the case of Saifi was different than other accused persons and that his plea be heard after the pleas filed by other co accused persons are heard.
Proceedings Before Trial Court: What did Khalid Saifi Argue?
Seeking bail in the matter, John had submitted that Khalid Saifi did not owe an explanation to anyone about his participation in the protest against Citizenship Amendment Act and NRC.
John added that every individual has a right to protest which in itself is not indicative of a conspiracy. She had argued primarily on the allegations levelled against Saifi by the prosecution including the statement of witnesses under sec. 161 and 164 of CrPC.
John had placed reliance on the judgment delivered by the Supreme Court in NIA v. Zahoor Ahmad Shah Watali to submit that as compared to other special statutes including MCOCA, TADA etc. where degree of satisfaction is higher, the degree of satisfaction is lower in UAPA.
On the point of right to protest, John had objected to the allegations levelled against Saifi that he participated in the CAA NRC protests.
She had also argued that the prosecution had largely relied on the chats exchanged on a WhatsApp group between the accused persons. However, she had alleged, that the prosecution cannot pick and choose the messages in isolation. She argued that there are multiple narratives that are apparent from the chats, however, the prosecution has read only a few messages in isolation, and instead of a simple reading, is trying to attribute meanings to it.
John had further argued that other than the bald statement made in the supplementary chargesheet, there was no evidence to show that Khalid Saifi met Umar Khalid in December 2019 or that Umar Khalid gave him any direction to raise a protest site at Khureji.
John had submitted that none of the ingredients of ‘unlawful activity’ as defined under Section 2(o) of UAPA have been shown by the Prosecution.
Section 2(o) defines “unlawful activity” as any action taken an individual or an association, which is intended to bring about the cession of a part of the territory of India; which disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or which causes or is intended to cause disaffection against India.
It was thus argued that none of the offences alleged against Khalid Saifi, punishable under Sections 13 (Committing unlawful activities), 15 (Terrorist Act) and Section 17 (Terror Funding) or 18 (Conspiracy) of UAPA are met.
What did the Prosecution Argue Before Trial Court?
Referring to sec. 15 of the UAPA Act which defines a terrorist act, SPP Prasad had argued that while the riots were meticulously planned, there was destruction of properties, disruption of essential services, use of petrol bombs, lathis, stones etc and therefore meeting the criteria which is required under 15(1)(a)(i),(ii) and (iii) of the Act.
Prasad had added that a total of 53 people died during the riots, 142 people were Injured in first phase of riots and other 608 were injured in the second phase.
He had argued that the 2020 sit-in protests were carefully planned, picking strategic protest sites closer to 25 mosques. He had submitted that these sites were places with religious significance but were purposely given Secular names to give legitimate appearance to the allegedly communal protests.
He had referred to a December 20, 2019 meeting which was attended by Umar Khalid with Harsh Mander, members of United Against Hate, Swatantra Nagrik Sangathan, etc. He had averred that this meeting was key in deciding the areas of protest and strategies to mitigate police clashes by keeping women at the forefront.
Prasad had also argued that the the issue regarding the protests was not CAA or NRC but to embarrass the Government and to take such steps that it gets highlighted in the International media.
He had said that while Umar Khalida’s public perception was to protect the Constitution and waving the Indian flag, his agenda was different.
Main thrust of Prasad’s arguments was that the DPSG group was a highly sensitive group wherein every small message was privately deliberated upon and then passed forward to other members. Every decision taken was conscious and well thought over, he had said.
He had submitted that while the case of the prosecution is not that every person who surfaces in the conspiracy has to be made an accused and that merely being silent on a group does not make one an accused, however, he added that in case evidence is found against any person, criminal action has to follow.
In this backdrop, he had argued that there was a ‘conspiracy of silence’ in committing the 2020 North East Delhi riots, idea behind which was to completely put the system under paralysis.
The FIR against Khalid contains stringent charges including Sections 13, 16, 17, 18 of the UAPA, Sections 25 and 27 of the Arms Act and Section 3 and 4 of the Prevention of Damage to Public Property Act,1984. The accused are also charged under various offences mentioned under the Indian Penal Code, 1860.
In September last year, main chargesheet was filed against Pinjara Tod members and JNU students Devangana Kalita and Natasha Narwal, Jamia Millia Islamia student Asif Iqbal Tanha and student activist Gulfisha Fatima.
Others who were charge-sheeted included former Congress Councilor Ishrat Jahan, Jamia Coordination Committee members Safoora Zargar, Meeran Haider and Shifa-Ur-Rehman, suspended AAP Councilor Tahir Hussain, Umar Khalid, Shadab Ahmed, Tasleem Ahmed, Salim Malik, Mohd Salim Khan and Athar Khan.
Thereafter, a supplementary chargesheet was filed in November against former JNU student leader Umar Khalid and JNU student Sharjeel Imam in a case related to the alleged larger conspiracy in the communal violence in northeast Delhi in February.
This article first appeared on livelaw.in