Bail order of co-accused can't be used as precedent: Delhi Police to Supreme Court in bail plea of Umar Khalid, others

The Delhi Police on Tuesday opposed the bail pleas filed before the Supreme Court by six accused persons in the larger conspiracy case connected to Delhi riots of 2020.The police told a Bench of Justices Aravind Kumar and NV Anjaria that the six accused persons cannot seek parity with three other co-accused who were granted bail earlier by the Delhi High Court and which was confirmed by the top court.This was because the Supreme Court had clearly said that the bail order of co-accused Natasha Narwal, Devangna Kalita and Asif Iqbal Tanha cannot be treated as a precedent."The bail orders were not supposed to be used as precedent. That is clear. The law which was enunciated (by the High Court) was not approved by this court (Supreme Court)," Additional Solicitor General (ASG) SV Raju said.Pertinently, the issue of parity was raised even before by accused like Umar Khalid and was rejected by the Court in his previous bail petitions.Hence, he cannot raise the same issue by filing repeated bail petitions unless there is some material change in circumstances, it was argued by ASG Raju.Solicitor General Tushar Mehta, also appearing for the prosecution, said that accused Sharjeel Imam had exhorted Muslims to unite and bring cities including Delhi to a standstill."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," Mehta contended..The hearing in the matter will continue on November 20..BackgroundKhalid 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. 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-MuslimsDuring the hearing of the matter on October 31, Umar Khalid, Sharjeel Imam and Gulfisha Fatima told the Court that they did not make any calls for violence and were only exercising their right to peaceful protests against the Citizenship Amendment Act (CAA) While Khalid told the Court that he was not even in Delhi when the riots took place, Imam said that he never made any calls for violence but only called for peaceful blockades."Petitioner was not even in Delhi when the riots took place. If I am not there, how can the riots be connected to it," Khalid's counsel said."I abhor violence. No calling out for violence at all. Only peaceful protests," Imam's lawyer submitted.Fatima too said that there was no evidence of any violence at the protests sites where she was present."The allegations against me is that I set up protest site. No act of violence at any of those sites. No documentary or oral evidence of anyone carrying chilli powder, acid etc at any of the sites where I was present," counsel for Fatima contended.When the matter was heard on November 3, accused Meeran Haider told the Court that he had specifically objected to having Sharjeel Imam at the protests sites during the anti-Citizenship Amendment Act movement in 2020.Haider's counsel Siddharth Agarwal said that Haider had tweeted against having Imam at the protest sites and hence, the argument that he conspired with Imam was false..Arguments today.Solicitor General (SG) Tushar Mehta, appearing for the Delhi Police, said that the riots were pre-planned and not spontaneous. "It was told that there was a protest which resulted in communal riots. First of all, that myth to be busted. This was not a spontaneous riot. It was a well designed, well-crafted, well-orchestrated, pre-planned riot. That will emerge from the evidence collected. This was not spontaneous. It was an attack on the sovereignty of the nation," he said.Mehta contended that the speeches made by accused were with the intent to divide society on communal lines."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," he said.The SG specifically alleged that accused Sharjeel Imam made communal statements and exhorted Muslims to bring cities to a standstill. "Sharjeel Imam says it’s his heartfelt wish for chakka jaam for every city where Muslims reside, not just in Delhi. 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,” Mehta contended. The SG also argued the delay in trial was 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 say 'give me bail'. He also sought to place reliance on WhatsApp chats of the accused."There was a systematic WhatsApp group. Which we have recovered. 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," he submitted..Additional Solicitor General (ASG) SV Raju, also appearing for the Delhi Police, countered the accused persons' claim for parity with other accused who got bail from Delhi High Court.He said that the Supreme Court had specifically said that bail order of Natasha Narwal, Devangna Kalita and Asif Iqbal Tanha cannot be used as a precedent."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 third was Asif Iqbal Tanha. 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 any other party. So categorical restraint. The final order was passed on May 2, 2023. The bail orders were not supposed to be used as precedent. That is clear. The law which was enunciated was not approved by this court," Raju contended.."That means in facts he can show it (claim parity)," Justice Kumar said. "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. If the accusation is prima facie true, you can’t grant bail. If the rigours of 43 stand, then bail cannot be granted. The Supreme Court said since it is sitting in cancellation of bail, they have limited powers. The Supreme Court would not have granted bail had the interpretation of 43 been made correctly by the High Court," the ASG replied."The offences arise from the same FIR?" the Court asked. "Yes," the ASG replied. "Then how do you distinguish," the Bench queried.ASG Raju then underscored that they are not seeking relief based on facts but are basing their case on law.He further said that the High Court order that UAPA cannot be applied unless it involves defence of India, was also based on law. "They are not on facts. If a person is accused under UAPA chapter 4 and 6, the Court cannot grant bail unless Section 43 is complied with. When the High Court 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," the ASG said..The ASG said that the High Court order granting bail to the co-accused was erroneous even though the Supreme Court did not set aside that order."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," the ASG stated..He also referred to previous bail applications filed by Umar Khalid and said that he cannot seek bail again unless there is a change in circumstances."There’s one more aspect on parity which is peculiar to Khalid’s case. You can 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. When the High Court 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. There is therefore, no change in circumstance as far as parity is concerned in Umar Khalid’s case," Raju claimed.He also highlighted how the trial court had castigated the accused for trying to delay trial."Trial court has expressed its distress because the accused are delaying the proceedings," he contended.The hearing in the matter will resume on November 20, Thursday..[Read Live Coverage].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.