Delhi riots conspiracy case accused conclude arguments in bail plea before Supreme Court

The six accused in the Delhi riots larger conspiracy case concluded their arguments before the Supreme Court on Tuesday in their bail petitions in the case against them under the Unlawful Activities Prevention Act (UAPA).

A Bench of Justices Aravind Kumar and NV Anjaria heard rejoinder arguments by the six accused - Umar Khalid, Sharjeel Imam, Gulfisha Fatima, Meeran Haider, Shadab Ahmed and Mohd Saleem Khan.

At hearing today, Imam's counsel contended that while some parts of his offending speeches (which have led to the case against him) were unpalatable, it would not per se be sufficient to invoke UAPA against him, particularly since he has not been named in any of the 750 FIRs relating to actual riot violence and killings.

Therefore, he sought bail citing long incarceration of 6 years as an undertrial prisoner.

The other accused also concluded their arguments today.

Additional Solicitor General SV Raju will make his arguments tomorrow on behalf of the Delhi Police.

Background

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 anti-terror law, Unlawful Activities Prevention Act (UAPA).

Khalid was arrested in September 2020 and charged with criminal conspiracy, rioting, unlawful assembly as well as several other offences under UAPA.

He has been in jail since then.

Imam too was booked in multiple FIRs across several States, mostly under sedition and UAPA charges. Though he secured bail in other matters, he is yet to get bail in the present case on larger consipracy.

On September 2, the Delhi High Court denied the accused bail, prompting Khalid and the others to move the Supreme Court for relief. The top court had issued notice to the police on September 22.

In response to the bail petitions, the Delhi Police filed an affidavit contending that there is irrefutable documentary and technical evidence pointing to a conspiracy for a "regime-change operation" and plans to incite nationwide riots on communal lines and kill non-Muslims.

During the hearing of the matter on October 31, the riots accused told the Court that they did not make any calls for violence and were only exercising their right to peaceful protests against the CAA.

Meanwhile, the Delhi Police argued that the six accused cannot seek parity with the three other accused who were granted bail earlier by the Delhi High Court.

On November 18, Solicitor General (SG) Tushar Mehta argued on behalf of the Delhi police that the riots were pre-planned and not spontaneous. He added that speeches made by the accused were made with the intent to divide society on communal lines.

During the hearing of the case on November 20, the Delhi Police told the top court that the accused are anti-nationals who tried to overthrow the regime through violence.

Similar arguments were made on November 21 as well, when the police contended that the accused had tried to effect a regime change in India through riots like those which took place recently in Bangladesh and Nepal.

When the matter was heard last on December 3, the top court asked the six accused to furnish their permanent addresses to the court.

Arguments today

Senior Advocate Siddhartha Dave, appearing for Sharjeel Imam, told the Court that Imam already secured bail in the case registered against him for the speech itself.

"Where I gave the speech, where the FIR is registered I am already enlarged on bail. In the trial for the speech, I have been enlarged on bail," he said.

It is only in the present larger conspiracy case registered by the Delhi Police on the basis of that speech that Imam is yet to get bail.

"The charge is not whether my speech individually is falling foul of section 15 of UAPA In the actual riots cases where 750 FIRs were filed, section 15 is not invoked. This is conspiracy to commit that offence where I am not named in 750 FIRs. We have to see whether the speeches were conspiratorial in nature. The order which dismissed my bail (Dave reads a trial court order rejecting Imam’s bail where it has noted that Imam did not ask people to pick up weapons etc) - it has been held that I made no call to pick up any weapons. I am being prosecuted not twice not thrice, but may be 8-10 times for the speeches I have given," Dave contended.

Justice Kumar asked Dave to read Imam’s speeches in Asansol.

Dave said that while the wording used in some of the speeches are unpalatable, Imam has been in jail for 6 years.

"There is a legislation in the parliament. Some of his speeches are unpalatable. It could have been better worded. It could have remained within the four corners of law. Should not have done it. But today he is standing asking for bail after 6 years in custody. He is not physically present or an accused in any of the cases where the riots actually took place," he said.

Dave the proceeded to read the speech of Imam in which he said “whatever has been happening since the last 6 months is a direct attack on Muslims”

"These are only excerpts. I am granted bail for giving these speeches," Dave stated.

"You admit on 22nd Jan speech about Chakka Jaam," Justice Kumar pointed out.

"There was some shoving etc. I am already prosecuted for these. My speeches can’t be conspiratorial in nature. The premier investigation agency for UAPA is NIA. They have a right of refusal over investigating a UAPA offence. Police officer registering case under UAPA has to give it to the State. State has to give it to the Centre. Then Centre, depending on gravity of offence, decides whether NIA should investigate. NIA can investigate only scheduled offences. No other. Offences which threaten the sovereignty and integrity have been entrusted to the NIA. Not the local police. When the blast happened near Red Fort, NIA jumped in to investigate. But in this case, they say my offence was grave, speeches were egregious etc but no entrustment to the NIA. Unlike counsel on my side, I am not throwing anyone under the bus. But I am saying that those who were physically present, part of the WhatsApp group, part of the meeting, they have been granted bail. And I am here only for my speeches," Dave submitted.

Dave proceeded to highlight the "good" and "bad" part of Imam's speeches.

He underscored that he was not made an accused in any of the actual riot FIRs.

"They say the speech has led to conspiracy. The role to me is only of these speeches. If these speeches lead to the riots, I would have been prosecuted for the riots. 750 FIRs but I was not prosecuted in them. Because I was not physically present. In his speeches he says “you take the beating, don’t attack”. 4.5 years of prosecution for giving these speeches. How does conspiracy alone to cause riots invite Section 15?" Dave demanded.

Dave said that Imam was already in custody when the riots took place.

"I am not there in DPSG group. I was arrested and in custody before the riots began. There has to be some outcome, some speech that says that within so and so days commit this act. 6 years of custody as an under trial, in a case for conspiracy, given the voluminous nature, given the time for trial, I am only asking for bail. As a citizen, I have hope. 6 years is a long period for somebody who is under trial," Dave said while concluding his arguments.

Senior Advocate Salman Khurshid, appearing for Shifa-ur-Rehman, rebutted the claim that he had received ₹8 lakh for managing a protest site.

Khurshid also said that supporting a protest site itself is not illegal as long as the protests are non-violent.

"There’s some money received by the petitioner here. The worst allegation is 8 lakhs saying that it was used to look after the protest site. But no recovery, no evidence of transfer… a protest site being supported is not an illegal. If the protest is non-violent. There is no FIR against me anywhere in Delhi including in Jamia. My case is stronger than the case of those persons who were granted bail. I was not part of the WhatsApp group, I don’t have a single FIR against me," Khurshid submitted.

He also said that Rehman has no criminal antecedents and has not contributed in any manner to the delay in trial.

"We were not responsible for any delay as far as the trial is concerned. We concluded our arguments on charge in a single day. I am a respectable citizen, no previous antecedents but I have admitted that I have sympathy for the protest against CAA-NRC," he said.

He also highlighted that Rehman did not make any speeches or indulge in any violent act and mere opposition to a law made by parliament (CAA) cannot attract any offence.

"Mens Rea must be there in conspiracy. And the other one is causation. They should be able to show that causation has to be direct. I am simply saying that I have said nothing, done nothing. The only allegation is that 1lakh I used to support people, put some cover over their heads in the bad weather etc. when there was protest movement there must be many people from different parts of the country. But to assume that everybody who responded to the protest is a conspirator is very unfortunate. Mahatma Gandhi did civil disobedience. It was defiance of law. Defiance does not mean violence," Khurshid submitted.

Senior Advocate Siddharth Agarwal, appearing for Meeran Haider, claimed alibi when it came to the meetings in which conspiracy was allegedly hatched.

"There were conspiratorial meetings where according to them (police), people were sitting in these meetings and hatching these plots. The petitioner was not in Delhi on the day of the meetings because of the death of his mother. I am not in that photograph from that meeting. I have been in custody for 6 years for being involved in two meetings where my case is I was not in the city when those meetings happened. The reason was my mother was not well, we have train tickets, everything is available," Agarwal said.

He also rebutted the police claim that the accused are responsible for the delay in trial.

"The entire issue on delay is on the other side. 6.3.2020 is when the FIR was registered. Last chargesheet was on 7.6.2023. That is a period of more than 3 years. First time prosecution put to the accused persons let us start arguments on charge was on September 2023. The entire argument on delay is that accused person refused to begin arguments on charge. According to law investigation must conclude, there must be a quietus for the court to apply its mind. So what’s the problem if the accused told the court to ask them if their investigation is over. Only then I would begin arguing on charge. They answered that question in 1 year. In September 2024 they answered in affirmative. And now they are attributing this delay of 1 year to me. the period of delay is actually on their doorstep. September 24 the arguments on charge commence. Some accused person says I will take 2 weeks to conclude, some say 1 week some say I don’t know. When I was asked I was said I had not spoken to my counsel. That resulted in deferment from 1st August to 4th August. But arguments have been continuing on behalf of some accused or the other from there on. There cannot be one reason for delay where 5 years have passed," Agarwal said.

Senior Advocate Sidharth Luthra, appearing for Shadab Ahmed, also said that there was no evidence of Ahmed's presence in any violent acts and call data records also supported his case

"I just wanted to point out that call data records (CDR) show I was not there. 1.5 years later they change their stance bringing oral evidence. Neither the High Court nor the trial court has considered this (while rejecting bail plea). That’s the one sentence I want to say," Luthra said.

There’s no CCTV footage showing me in any active violence.

"I was not in the scene of crime. The CDR shows me present earlier in the scene of crime. Delayed recording is a ground for discharge. The CDR supports me," Luthra said.

Advocate Gautam Khazanchi appeared for accused Mohd. Saleem Khan.

"Since I (Khan) am not a menace to society, I may be released on bail. I have delineated my specific role in my note," he submitted.