New Delhi: “The riots that took place in Delhi were a pre-planned conspiracy. The conspiracy to spread these riots was hatched by JNU student Umar Khalid and his associates.”
This is what FIR No. 59/2020, filed on 6 March last year, had said about the communal riots in Northeast Delhi the previous month.
Six months later, on 12 September, Khalid was summoned by the Delhi Police Special Cell, asking him to join the investigation the next day. Khalid obliged and went to the Special Cell’s office in Lodhi Colony at around 1 pm on 13 September, a Sunday. He was arrested at around 11 pm the same day under FIR 59/2020.
The same month, an over 17,000-page charge sheet was filed in the case. Then, in October 2020, another 197-page long charge sheet called Khalid a “veteran of sedition”, and contained narratives that his lawyer argued “read like the script” of the Amazon Prime TV show The Family Man.
It has been a year since that last charge sheet was filed, but the trial in FIR 59/2020 hasn’t yet begun. The reason? Judicial technicalities.
It took almost six months and three orders from two courts for the accused to get a physical copy of the charge sheet. The next six months have gone by with the prosecution allegedly resisting the applications filed by some of the accused for certain documents on the basis of the charge sheet.
However, speaking to ThePrint, a Delhi Police source said it is not the police or prosecution, but the defence which is employing “legal tactics” to delay the trial, so that it becomes a “ground for bail”. The source added that the police actually want the trial to begin fast.
In the meantime, Umar Khalid has approached the court with various applications, ranging from requests to meet his family, getting treatment for toothache, stopping the ‘media trial’ against him, and even for stepping out of his cell.
6 months to file the charge sheet, another 6 for a copy
On 21 September last year, additional sessions judge Amitabh Rawat had directed that soft copies of the charge sheet should be supplied to the accused immediately, and that physical copies should be given to all the accused in jail. A month later, on 21 October 2020, the court was told that all the accused have been given soft copies of the charge sheet in pen drives.
The prosecution argued that this was “sufficient compliance” of Section 207 of the Code of Criminal Procedure, which mandates ‘free of cost’ supply of police reports and other documents to the accused. The investigating officer also told the court that funds need to be sanctioned by the Delhi government for getting hard copies for all the accused, and the police should be granted 15 days for it.
However, judge Rawat had said he was “not impressed” with the investigating officer’s submission on funds. Instead of complying with his order, the Delhi Police approached the Delhi High Court, challenging the two orders and claiming that the direction was passed in a “mechanical manner”.
The high court stayed the trial on 10 November, and heard the matter nine times in five months. Finally, on 23 March, the court was informed that complete hard copies of the charge sheet are ready and the accused can collect them from the trial court on 25 March. The stay imposed on the trial was, therefore, vacated.
‘Bound to take time’
For the next six months, the prosecution resisted applications filed by some of the accused demanding documents on the basis of the charge sheet.
The case is currently at the stage of scrutiny of documents, which comes after filing of the charge sheets. The charge sheets are supplied to the accused persons, who then ensure that they are complete in all respects — such as, ensuring that all the documents cited and relied on are annexed in the charge sheet. The next step will be framing of charges.
“Usually, you will ask for documents which are either illegible or documents which have been relied upon in the charge sheet, which should be provided as a relied-upon document,” said a lawyer representing one of the accused in this FIR, who did not wish to be identified.
“This process doesn’t usually take this long when charge sheets are small. But where there are 18 accused, plus 18,000 pages of charge sheets, with so much electronic evidence, it is bound to take time,” the lawyer added.
Some of the accused have currently filed applications under Section 207 of the Code of Criminal Procedure, demanding documents on the basis of the charge sheet.
A lawyer representing one of the accused told ThePrint these applications “have met with resistance” from the prosecuting agency. They pointed out that the Supreme Court has ruled that the accused should also be provided with the documents that help them and not just those that try to establish their guilt.
For instance, on 10 September, lawyers for Natasha Narwal and Devangana Kalita told the court that their application seeking a copy of electronic evidence in the case was filed under Section 207 of the CrPC five months before, in April. However, the police still haven’t responded to it.
In response, special public prosecutor Amit Prasad told the court that the volume of complete electronic data seized is huge, and it includes the data from accused, witnesses and suspects. He then asserted that it contains personal data of people whose equipment was seized, and so it needs to be analysed because supplying all data without any classification would infringe on the privacy of the others.
Jamia Millia Islamia student Asif Iqbal Tanha, meanwhile, has demanded a clone copy of his mobile phone, to obtain the entire content and context of the chats etc. relied on by the prosecution. However, Prasad argued that this cannot be done as the phone is with the forensic science laboratory.
In response, Tanha’s lawyer Sowjhanya Shankaran told the court that in the charge sheets, about 65 pages have been dedicated to the information allegedly recovered from his phone. She, therefore, contended: “This is my phone. This isn’t a privacy issue. This is material already relied on. It’s their bounden duty to provide me with this.”
In fact, during a hearing on 30 September, judge Rawat also expressed concerns over the delay in the trial. The court therefore asked all the accused to file applications under Section 207 within two weeks. It also asked the prosecution to file a reply on the documents which cannot be supplied to the accused.
The court asserted that if the accused file their applications under Section 207 on different dates and the prosecution chooses to file replies in all of them, it will delay the entire process because arguments will have to be heard separately on each application.
“This will take years, it will become very difficult,” the judge remarked.
‘Police want trial to begin fast’
The Delhi Police source quoted at the beginning of this report rubbished the allegation that the police or prosecution are trying to delay the trial.
“It is a total lie. We, in fact, want the trial to begin fast since we have investigated the case thoroughly, have filed the charge sheet, and have all the witnesses and their statements. These are all legal tactics by the lawyers of the accused, who are doing this so that this can become a ground for bail,” the source said.
“After we filed the charge sheet in the case and the court took cognisance of it, these lawyers filed numerous bail petitions in the court saying the cognisance was taken too quickly. Were they not thinking about the trial at that time?” the source asked.
The source also dismissed the allegations that the police took six months to supply hard copies of the charge sheet to the accused, and also resisted applications filed for certain documents by the accused.
“They are seeking all the documents, even the ones that we have not relied upon, and that is what we resisted. The accused can ask for only those documents that have been relied upon by the investigation agency, while making the charge sheet. Moreover, from the phones that we seized, there are several personal chats, pictures etc. which are not relevant to the case, and so we have not mentioned them anywhere. Do they want us to circulate all that material to the accused and their lawyers?” the source said.
“In fact, we told them (the defence) to come examine whatever documents they need to see, but they kept delaying that. Also, we were the ones who facilitated the defence by giving them the 18,000-page charge sheet in a pen drive, because it was that bulky. But they insisted on a hard copy. Is that not unnecessary?” the source added.
“Moreover, it was the high court that put a stay, which led to a delay. Orders for several petitions were reserved for months. How is this the police or prosecution’s fault?”
Khalid’s own pleas
Over the last year, Umar Khalid has also approached the court multiple times with applications demanding privileges and rights he is entitled to under the jail rules.
Soon after his arrest, he first sought permission to meet his family in custody; then for security cover, to allow him to carry out his jail routine without discrimination. Then, he told judge Rawat that he was not allowed to step out of his cell and it was a sort of “solitary confinement”.
He alleged that he was alone in his cell and was not allowed to step out and talk to anyone. In December 2020, Khalid alleged he was not being given medical treatment by the prison authorities for a toothache. Khalid also moved the court alleging that the “vicious media campaign” against him was affecting his right to a free and fair trial, which is a part of the fundamental rights guaranteed under the Constitution.
The court dismissed his first plea, on being allowed to meet his family, after the police resisted, claiming that Khalid was not cooperating. The court, however, did direct that he should be given security cover, and pulled up Tihar jail authorities for their “strange and bizarre” submission that “the cell where the inmate is being kept is located at such a place from where more than half of the ward movement is visible”. It directed that he be allowed adequate time out of his cell.
It also instructed the jail superintendent to provide proper medical treatment to him for his toothache, and in January this year, asked media publications to follow self-regulation while reporting pending investigations and trials.
Khalid’s bail application is also currently pending. It was filed on 6 September, and since then, the hearings have seen his lawyer Pais reading out portions of the charge sheets to explain how the allegations against Khalid do not constitute an offence under UAPA and “how the allegations are implausible”.
The lawyer has launched multiple barbs at the allegations in the charge sheet and its author, saying things like “script of some news channel”, “fertile imagination of the officer”, “he’s not writing the script of Family Man”, and “the last person who travelled with someone and got into this officer’s head was Voldemort from Harry Potter”.
The lawyer also read from the screenshots of the WhatsApp group conversations attached to the charge sheet, alleging that these were “selective”. “I can add Your Honour also if I had the number…Being a part of a group is not a crime.”
Pais has also ripped into one section of the charge sheet that talks about a “secret meeting”, but which uses as evidence “pictures of the said meeting…downloaded from Facebook of one of the participants”.
The lawyer argued on 12 October: “It can’t be a secret meeting if it is posted somewhere…Where does it say it’s a crime? Meeting has been shown everywhere branded as a conspiracy. Please tell me the criminality on this page…Attending such meetings which are in the public realm is not a crime.”
This story first appeared on theprint.in