‘Hurried trial will affect rights, bail not a universal rule’: Delhi HC order denying bail to Umar, Sharjeel and others in 2020 Delhi riots case

Umar Khalid

In a detailed order running 133 pages, the Delhi High Court on Tuesday dismissed the bail pleas of Umar Khalid, Sharjeel Imam and several others accused in the larger conspiracy case linked to the 2020 Delhi riots, holding that a “hurried trial” would be detrimental to both the accused and the State.

A Division Bench of Justice Navin Chawla and Justice Shailender Kaur observed that the trial in the case, which involves voluminous material including a chargesheet of more than 3,000 pages and 30,000 pages of electronic evidence, should progress at its "natural pace".

“The pace of the trial will progress naturally. A hurried trial would also be detrimental to the rights of both the Appellants and the State,” the court said in the order seen by Moneycontrol, noting that the matter was presently at the stage of hearing arguments on framing of charges.

The court said that the Delhi Police had carried out a detailed investigation leading to multiple arrests and the filing of four supplementary chargesheets. “The State carried out a detailed investigation, which led to the arrest of several individuals and the filing of four supplementary chargesheets, with multiple accused persons charge-sheeted, and as many as 58 witnesses, including protected witnesses, whose statements under Section 164 of the Cr.P.C. were also before the learned Magistrate,” the Bench said.

It added: “Keeping in view the nature of the allegations, and specifically the submission of the learned Solicitor General and the learned SPP that the present is not a case of regular protest/riot matter, but rather a pre-meditated, well-orchestrated conspiracy to commit unlawful activities threatening the unity, integrity, and sovereignty of India, it becomes the arduous task of the court to strike a balance between individual rights and the interests of the nation, as well as the safety and security of the general public at large. Therefore, these appeals do not succeed.”

In strong observations against Khalid and Imam, the court noted: “Prima facie, their role in the entire conspiracy is grave, having delivered inflammatory speeches on communal lines to instigate mass mobilization of members of the Muslim community.”

It noted that Khalid had delivered speeches in Amravati coinciding with the visit of then US President Donald Trump, “and the same cannot be lightly brushed aside.” The Bench further said that Imam and Khalid were among the first to act after the passage of the Citizenship Amendment Bill (CAB), by creating WhatsApp groups and distributing pamphlets in Muslim-populated areas calling for protests and chakka-jams, including disruption of essential supplies.

“The probative value of the evidence against the Appellants Sharjeel Imam and Umar Khalid, prima facie and at this stage, cannot be branded as weak,” the court added.

Regarding accused Athar Khan, Shadab Ahmed, Abdul Khalid Saifi and Mohd. Saleem Khan, the court held that they had played “their respective active role in the alleged conspiracy and were involved in the creation of protest sites such as Khureji, Chand Bagh, Karawal Nagar, Kardam Nagar, and Nizamuddin, among others.”

It noted that evidence suggested their presence in meetings, particularly on the intervening night of February 23–24, 2020, “where there were alleged discussions to effect further violence against the Policemen and non-Muslims. Prima facie, it emerges that the Appellants-Athar Khan and Shadab Khan were in agreement to destroy or cover Government-installed- CCTV cameras so that they could operate fearlessly.”

On Shifa-ur-Rehman and Meeran Haider, the Bench said they were part of the Jamia Coordination Committee, with meetings held at the AAJMI office, and that call data records indicated their connectivity with each other and other co-accused including Khalid. “Prima facie, it appears that the Appellants were working closely together, and the allegation of funding is a serious factor which cannot be brushed aside at this stage,” it said.

As for Gulfisha Fatima, the court noted that WhatsApp groups allegedly created by her were aimed at coordinating protests and ensuring participation of women. “The fact of creation of the two groups cannot be seen in isolation and the consideration should weigh in on broad probabilities as per the settled law. In our prima facie view, the role ascribed to the present Appellant, as reflected from the material on record, is distinct than that of the co-accused Devangana Kalita and Natasha Narwal in the alleged conspiracy,” the Bench added.

The Bench acknowledged that the right to peaceful protest and public speeches was protected under Article 19(1)(a) of the Constitution, but stressed that it was not absolute. “If the exercise of an unfettered right to protest were permitted, it would damage the constitutional framework and impinge upon the law-and-order situation in the country,” the Court observed.

“Any conspiratorial violence under the garb of protests or demonstrations by the citizens cannot be permitted. Such actions must be regulated and checked by the State Machinery, as they do not fall within the ambit of the Freedom of Speech, Expression, and Association,” it added.

The accused had argued that prolonged incarceration without conclusion of trial was a ground for bail. However, the Bench rejected a universal application of this principle. “Constitutional courts are well within their powers to grant bail to an undertrial who has suffered a long period of incarceration pending trial and are to secure the right to a speedy trial of an accused, flowing from Article 21 of the Constitution of India. However, the grant of bail on the sole ground of long incarceration and delay in trial is not a universally applicable rule in all the cases,” the court said.

It emphasised that discretion lay with the court, depending on the facts and circumstances of each case.

On the argument of parity with co-accused already granted bail, including Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, the Bench said: “Although the co-accused persons were present in the alleged conspiratorial meetings and were allegedly members of the WhatsApp groups, however, their role was limited when juxtaposed with Imam and Khalid.”