Delhi Riots: Supreme Court hears bail pleas by Umar Khalid, Sharjeel Imam, others [LIVE UPDATES]

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 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: 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: 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: Yes.

Justice Kumar: Then how do you distinguish?

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: 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.

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

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.

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: 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.

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

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

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 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.

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.

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….

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: 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”

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.

Hearing Starts