'Can't hold a mini trial on whether or not you met Tahir Hussain, Khalid Saifi': Delhi High Court in Umar Khalid Bail Plea

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A Special Bench of Justice Siddharth Mridul and Justice Rajneesh Bhatnagar of the Delhi High Court today continued hearing the appeal filed by UAPA accused Umar Khalid challenging the Trial Court's order refusing him bail in case involving conspiracy in the North East Delhi riots of 2020.

Senior Advocate Trideep Pais began his arguments with addressing the charge of conspiring with co accused Tahir Hussain and Khalid Saifi at the Popular Front of India's (PFI) Shaheen Bagh office through a meeting held between the three on January 8, 2020.  

Pais submitted that the witness testifying to the meeting taking place was Tahir Hussain's driver, who would drive him around to all his meetings. Pais contended that the witness was unreliable, as the statements made by him at different stage of trial and investigation, under Section 161 and Section 164 of the Code of Criminal Procure Code, respectively, were at variance with one another.

"The witness, during the stage of investigation, had told the police that he dropped Tahir Hussain to the venue of the meeting, where Khalid Saifi and Umar Khalid were waiting for him. On the other hand, in his statement to the police are also contradictory. In his S.161 statement he says that when he reached Umar Khalid and Khalid Saifi and Tahir Hussain were already there. However, a month later in his S.164 statement before the court, he said that he dropped Tahir Hussain to the PFI office and saw Umar Khalid waiting for him outside," Pais stated.

He further cited the order of the court granting bail to Umar Khalid in another FIR, namely, FIR No. 101/2020, where the court had observed:

"The sole evidence of this so called conspiracy is a statement of PW Rahul Kasana, wherein he stated on 27.09.2020 that he was standing outside a building in the area of Shaheen Bagh, where he had dropped principal Tahir Hussain and thereafter he saw applicant and Khalid Saifi going into the same building. I fail to understand from the aforesaid statement how a lofty claim of conspiracy can be inferred. In my opinion chargesheeting the applicant in this case on the basis of such an insignificant material is unwarranted"

Pais juxtaposed the aforementioned observation with the observations made by the Additional Sessions Judge, Amitabh Rawat in the present FIR, bearing no. 59/2020, in order rejecting Khalid's bail dated March 24, 2020, which were:

"On 08.01.2020, Tahir Hussain entered into the picture for local leadership and local connectivity. A meeting took place between Umar Khalid, Khalid Saifi and Tahir Hussain at PFI office in Shaheen Bagh area. This is confirmed by statement of protected witness Saturn (Ld. Senior Advocate highlighted that this witness cannot be believed as he was not believed in FIR No. 101/2020 P.S. Khajuri Khas and there are contradictions in his statements under S.161 CrPC and S.164 CrPc. As far as present case is concerned there are admittedly two statements under S.161 CrPC and 164 CrPc and both have to be read. Even noting the contradictions, it is clear from the statement that Umar Khalid, Khalid Saifi and Tahir Hussain did meet at PFI office at Shaheen Bagh on 08.01.2020"

Thus, Pais contended that while one judge found the statement to be wholly inadequate in establishing even a prima facie case, the other Judge observed that the statement pointed to a prima facie case of conspiracy. 

Further, Pais also heavily relied on the Supreme Court judgement titled "National Investigation Agency vs Zahoor Ahmad Shah Watali"Para 23 and 24 of which were emphasised upon and which read,

“ 23. By virtue of the proviso to sub−section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise......

.........By its very nature, the expression prima facie true would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true, as compared to the opinion of accused not guilty of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.......

24. A priori, the exercise to be undertaken by the Court at this stage − of giving reasons for grant or non−grant of bail − is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise."

The said paras were repeatedly traversed by Pais, who sought to make a distinction between the standard of "not guilty" as under Section 21(4) of Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and "prima facie true' as under Section 43(D)(5) under the UAPA.

Pais argued that while the standard under the UAPA is lower than that of MCOCA, the chargesheet must, nevertheless, make out "good" and "sufficient" grounds against the accused. 

Pais also contended that the meeting between Tahir Hussain, Khalid Saifi and Umar Khalid was not secret, as the pictures of the meeting had been put up on Facebook, which was also the source of information of the police. 

However, the special bench remained unconvinced with Pais' arguments with regard to whether or not the statement of the witness should be relied upon 

"Mr. Pais the point is that the entire law has to be read as a whole. You are trying to compartmentalise the law!....We cant test the veracity of the witness's statement, which is what you are asking us to do. You are saying conduct a mini trial to test whether the accused met with Tahir Hussain and Khalid Saifi," the bench said.

The bench further observed that contradictions in the witness statement could not be considered at this stage of the hearing. "We cant say that at this stage we don't believe the witness", Justice Bhatnagar observed orally.


Additional Sessions Judge Amitabh Rawat denied bail to UAPA accused Umar Khalid. He was of the view that Khalid was connected with many accused persons and that his presence in several WhatsApp groups during the period from the beginning of passing of the Citizenship (Amendment) Bill in December 2019 till the February 2020 riots, had to be read in totality with other surrounding circumstances. 

On the contention raised by Pais that Umar Khalid was not present in Delhi during the time of riots, the Court had observed that in a case of a conspiracy, it is not necessary that every accused should be present at the spot.

Thus, perusing the charge­sheet and the accompanying documents, the Sessions court was of the view that the allegations raised against Khalid were prima facie true and therefore, the bar for grant of bail as per Section 43D of the UAPA was attracted.