[Umar Khalid bail hearing] Can't hold a mini-trial to question veracity of statements: Delhi High Court

While hearing the bail appeal filed by Umar Khalid in relation to the Delhi Riots case, the Delhi High Court remarked on Wednesday that it cannot hold a mini-trial to test the veracity of a witness’ statement..A Division Bench of Justices Siddharth Mridul and Rajnish Bhatnagar observed that the judgment in the Zahoor Ahmed Shah Watali case stated that while considering bail, a court can only look at the material and evidence collated as stated in the chargesheet, without questioning its veracity.The Bench said that in the present case, it cannot compare the police statement of witnesses and the statement given before a magistrate either. .However, Senior Advocate Trideep Pais, appearing for Khalid, submitted that Watali laid down the test that the evidence/statement collated in the chargesheet should be ‘good’ and ‘sufficient’ for the court to arrive at a prima facie view that the offence with which accused has been charged with was committed by him/her.Pais submitted that the threshold for bail in a case under the Unlawful Activities (Prevention) Act (UAPA) is much lower than in more stringent statutes like the Maharashtra Control of Organised Crime Act (MCOCA) and Narcotic Drugs and Psychotropic Substances Act (NDPS).“The Supreme Court has said three things. First the phrase ‘prima facie’ used in UAPA is different from presumption of an accused ‘not being guilty’ in other stringent statutes. Second, it has a lower threshold. And third, if there is anything that is good and true, take it on face value but on the face of it, it has to be good and true,” Pais argued..The Bench, however, noted that the evidentiary value of the chargesheet cannot be tested at the stage of granting bail..The High Court has been hearing Umar Khalid's appeal challenging the denial of bail in the Delhi Riots larger conspiracy case for which he was charged under the UAPA and several other sections of the Indian Penal Code (IPC).The discussion was on the issue of allegations that Umar Khalid, Khalid Saifi and Tahir Hussain had met at the office of Popular Front of India (PFI) in Shaheen Bagh on January 8, 2020 to hatch a conspiracy for the riots. The Delhi Police has relied on the statement of a protected witness to say that the conspiracy was hatched on that day..Pais argued that this was not the case, and that the witness did not disclose anything about this meeting in his previous statements based on which another case against Khalid was registered. Khalid has already been granted bail in that case.The allegations of conspiracy were made just a few days before Khalid's arrest, Pais said. He further argued that there was a variance in the witness’ statements before the police and before the magistrate..However, Justice Mridul said that the extent to which the statement was being asked to be dissected cannot be done while considering bail.“What the statement says it says, what it doesn’t, it doesn't…You are asking us to hold a min- trial. That we can't do,” Justice Mridul said.Justice Bhatnagar added,“Can we say at this stage that we do not believe the witness? We are not dealing with a bail application for the first time. We know what can and can’t be done.".Pais responded that he is not asking for a judgment on the merits of the case which would affect the trial in any way, but pointed out that the Call Detail Records (CDR) don’t show that the meeting took place and only bald allegations are made against Khalid..The Court will now hear the appeal on Monday. Pais has said that he will conclude his arguments on the next date, after which Special Public Prosecutor (SPP) Amit Prasad will argue for the Delhi Police.

[Umar Khalid bail hearing] Can't hold a mini-trial to question veracity of statements: Delhi High Court

Prashant Jha

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