The Supreme Court is hearing the bail pleas filed by Umar Khalid, Sharjeel Imam, Gulfisha Fatima, Meeran Haider, Shadab Ahmed and Mohd Saleem khan in the larger conspiracy case in relation to the 2020 North East Delhi riots.

A Bench of Justices Aravind Kumar and NV Anjaria is hearing the matter.

Khalid and others moved the top court against the Delhi High Court's September 2 order denying them bail. The top court had issued notice to the police on September 22.

The riots occurred in February 2020 following clashes over the then-proposed Citizenship Amendment Act (CAA). As per the Delhi Police, the riots caused the death of 53 persons and injured hundreds.

The present case pertains to allegations that the accused had hatched a larger conspiracy to cause multiple riots. The FIR in this case was registered by a Special Cell of the Delhi Police under various provisions of the Indian Penal Code (IPC) and the UAPA.

Most of the accused were booked in multiple FIRs, leading to multiple bail petitions before different courts. Most have been in custody since 2020.

Khalid was arrested in September 2020 and charged with criminal conspiracy, rioting, unlawful assembly, as well as several other offences under the Unlawful Activities Prevention Act (UAPA).

He has been in jail since then.

The trial court had first denied him bail in March 2022. He then approached the High Court, which also denied him relief in October 2022, prompting him to file an appeal before the top court.

In May 2023, the Supreme Court sought the response of the Delhi Police in the matter. His plea before the top court was then adjourned 14 times.

On February 14, 2024, he withdrew his bail plea from the Supreme Court,  citing a change in circumstances.

On May 28, the trial court rejected his second bail petition. An appeal against the same was dismissed by the Delhi High Court on September 2, prompting the present plea before the apex court.

Imam too was booked in multiple FIRs across several States, mostly under sedition and UAPA charges.

In the case registered over speeches he gave at Jamia Milia Islamia University and Aligarh Muslim University, he was granted bail by the Delhi High Court last year. In the sedition cases registered in Aligarh and Guwahati, he was granted bail by the Allahabad High Court in 2021 and the Gauhati High Court in 2020, respectively. He was also booked in FIRs in Arunachal Pradesh and Manipur.

The Court had earlier pulled up the Delhi Police for failing to file its response to the bail pleas.

Subsequently, the Delhi Police filed a 389-page affidavit detailing why the accused should not be granted bail.

The Police claimed irrefutable documentary as well as technical evidence that pointed to a conspiracy for a "regime-change operation" and plans to incite nationwide riots on communal lines and kill non-Muslims.

Live updates from the hearing feature here.

Hearing Starts

SG Tushar Mehta for Delhi Police: There has been a narrative which is built on social media etc. if we total up then number it will run into few weeks. Every counsel took 5,7,10 mins. We will have to show the facts. Narrative is different, facts are different.

Tushar Mehta: It was told that there was a protest which resulted in communal roits. First of all, that myth to be busted. This was not a spontaneous riots. It was a well designed, well crafted, well orchestrated, pre planned riots. That will emerge from the evidence collected. This was not spontaneous. It was an attack on the sovereignty of the nation.

Tushar Mehta: Speech after speech, statement after statement, there was attempt to divide the society on communal lines. It was not merely an agitation against some act. Sharjeel Imam says it’s his heartfelt wish for chakka jaam for every city where Muslims reside. Not just in Delhi.

Tushar Mehta: He says despite Muslims being 30% population why were the cities running. He goes on to say that Muslims of the country must unite. This needs to be taken very very seriously. The countrymen were being divided on communal lines. The real goal he says was that Delhi should not get milk or water. This was not a protest. He says “court ko unki naani yaad dila denge”

Tushar Mehta: The delay in trial is because of the accused. They are not cooperating. Each of them argued for 4-5 days for opposing framing of charges. Now in all cases where it’s difficult to defend on facts the mechanism is delay the trial and not to go into the merits and give me bail. There was a systematic WhatsApp group. Which we have recovered.

Tushar Mehta: The WhatsApp chats show how the property is to be damaged, how money is to be collected. It was a systematic and synchronised attempt to divide the society and divide the nation. It was not the case of a communal riots per se.

Tushar Mehta: Something very serious is going on with young people outside the court. The narrative….

ASG SV Raju takes over from Mehta.

SV Raju: Essentially there are three parts. One is parity, second is delay, third is merits. Let me first demolish the case on parity. They are relying on a judgement of co-accused. Out of which 2 were ladies. Natasha Narwal and Devangna Kalita and Asif Iqbal Tanha.

SV Raju: The order granting bail was challenged before this court. Initially this court granted interim order of 18.6.21 for Gulfisha. It was said that it was not be treated as precedent and may not be relied upon by any other party. So categorical restraint.

SV Raju: The final order was passed on May 2, 2023. The bail orders were not supposed to be used as precedent. That is clear.

SV Raju: The law which was enunciated was not approved by this court.

Justice Kumar: That means in facts he can show it (claim parity).

SV Raju: They were granted bail not because of law but because of the position of facts. It is not a simple interpretation of law. The rigourous conditions of section 43 of the UAPA have been excluded.

SV Raju: If the accusation is prima facie true you can’t grant bail. If the rigours of 43 stand then bail cannot be granted. The court said since it is sitting in cancellation of bail, they have limited powers. The court would not have granted bail had the interpretation of 43 been made correctly by the high court.

SV Raju: When this court did not cancel the bail because of the parameters of deciding on cancellation… their contention was high court granted bail and SC did not cancel.

Justice Kumar: Parity is different. Cancellation ka different. Not to be treated as precedent. To that extent you are correct.

SV Raju: They say UAPA is only confined to defence of India. Which is wrong. They say unless it pertains to defence of India UAPA is not attracted. Therefore they said 43 won’t apply. The Delhi high court said these facts do not pertain to defence of India therefore UAPA will not apply.

SV Raju: They say the accusations are not prima facie true. It is not based on facts…

Justice Kumar: The offences arise from the same FIR?

SV Raju: Yes.

Justice Kumar: Then how do you distinguish?

SV Raju: They are not on facts. If a person is accused under UAPA chapter 4 and 6. The court cannot grant bail unless 43 is complied with. When the HC said 43 does not apply, they did not say on facts. They interpreted application of UAPA saying it is limited to defence of India. High court went on a statutory interpretation and said 43D (5) is not applicable. They did not say so on facts but on law.

SV Raju: Your lordships said high court should have examined on factual scenario. This interpretation saying co accused should make out a case on facts is because high court did not make a case on facts. The second mistake by the high court is that once you hold that 43 is not applicable you exercise powers under 437 or 439. Since the high court has held that 43 is not applicable, ordinary criminal law would apply. If it is 437 it is imprisonment for life. Therefore you can’t grant bail.

SV Raju: The powers under 437 you can’t release a person. That restriction is missing in 439 CrPC.

Justice Kumar: 437 proviso gives benefit to Gulfisha. The embargo under 437 is diluted by the proviso.

SV Raju: The high court said I will exercise powers under 439. It is contrary to supreme court’s judgements. Kindly see. The original court does not have powers under 439.

SV Raju: The high court does not have powers under 439 in a UAPA case. Those 3 persons were wrongly granted bail by wrong interpretation of law. Therefore it can’t be extended to these persons.

SV Raju: Please see Arvind Kejriwal’s judgement. Para 87. “We are conscious that the principle of parity cannot be invoked for multiplying irregularity”. There’s one more aspect on parity which is peculiar to Khalid’s case. You can’t release file successive bail applications but you can’t do so on the same facts. There have to be changed material circumstances. Let us see whether the question of parity was in existence when khalid’s bail was being argued.

SV Raju: On 15.6.21 order parity is claimed. 18.6.21 is the interim order where this court not to be treated as precedent. Final order was on 2.5.23. When HC rejected his bail application on 18.10.22. This is after 15.6.21. When the HC rejected bail he must have argued on parity already when he knew the co accused have been granted bail. There is no change in material circumstance. Parity was already in question when his earlier bail application was rejected.

SV Raju: There is therefore no change in circumstance as far as parity is concerned in Umar Khalid’s case.

SV Raju: On the material before the court charges can be framed. But they wanted to delay the trial. They could have always moved for modification of charge. Ld. Trial court has expressed its distress because the accused are delaying the proceedings. (SV Raju continues reading trial court order).

SV Raju: “Accused persons are warned that the matter should not be delayed further”… “they have taken many adjournments during arguments on charge”. (SV Raju reads from the high court order).

SV Raju says that delay in trial in deliberate and is solely attributable to the accused.

Hearing ends

Arguments to continue (November 20, Thursday) day after tomorrow.