Read Time: 15 minutes

• Umar Khalid, an accused in the cases concerning larger conspiracy connected to the Delhi Riots of 2020 has approached the Delhi High Court

• A Delhi Court had found that Umar Khalid's role in the Delhi Riots is conspiracy is apparent and had thus rejected his bail plea

---

The Delhi High Court on Wednesday orally deliberated on the bail application of Umar Khalid, accused of larger conspiracy in connection with the case(s) concerning Delhi Riots of 2020. 

Justice S. Mridul noted orally that the speech which Khalid delivered was more like "galvanising the troops" which eventually led to the Delhi Riots.

He said, "You may not have to incite everyone. We may not be incited but inciting co-conspirators will be incitement to violence".

However, Trideep Pais, Khalid's lawyer pointed out that at no point in time was Khalid meaning to incite violence and that was evident in the video of the speech delivered at Amravati. "None of them are incited", he said.

Khalid's lawyer added, "That doesn't make it terror (the clapping)".

"You are obviously not employing that they are clapping because it is STAND-UP Comedy?You don't expect him to confess of this, do you?," asked Justice Mridul.

The bench then asked Khalid's lawyer to read out the speech of Khalid

On the part of the speech where Khalid says, "hum wada karte Hain ki jab trump aayenge, hum dikhaenge ki Hindustan ki sarkaar Mahatma Gandhi ke assooolon ki dhhajiyaan udaa rahin hai.. aap log sadak par aayenge... ," the bench noted, "See! he asks everyone to come on the streets...!

Pais argued that the speech had Mahatma Gandhi's reference in it. The bench stated, "This is an intelligently drafted speech, Umar Khalid is an intelligent man".

Further into the hearing, Justice S. Mridul asked Khalid's lawyer if Khalid's alleged role can be segregated from the role of the other accused co-conspirators.

The judge said that even though assuming he couldn't give "anjaam" (effect) to the conspiracy by himself, the actions have to be tested on the role of the alleged co-conspirators. "That is the law," Justice Mridul said.

Pais told Court that "mere criticism of the government is not a crime" while citing Kedar Nath Singh v State of Bihar, Balwant Singh and Anr. V State of Punjab and S. Rangarajan v P Jagjivan Ram, arguing that mere criticism of the government cannot amount to sedition or offences under the UAPA.  

While taking the bench through the speech of Khalid delivered at Amravati, the bench asked the lawyer what Khalid called the Prime Minister of India,

"Jumla," said Pais

"Is that a proper word to use," asked a bench also comprising Justice Rajnish Bhatnagar

"It is obviously not a crime. Criticising the Prime Minister is not a crime, that is beyond intolerant," he said

"But a line has to be drawn somewhere," Justice Bhatnagar said.

Senior Advocate Mr. Trideep Pais, appearing for Umar Khalid also argued as follows:-  

1) On the same set of facts, different chargesheets reflect different offences  

Mr. Trideep Pais referred to an FIR dated 6th March, which raised allegations of offences under Sections 147, 148 and 149 of the Indian Penal Code, 1860. All these offences were bailable in nature and the accused arrested were granted bail by the court. Mr. Pais, drew the court's attention to another FIR on the same set of facts, which registered the offences of Section 302, 307 and 153A of the Indian Penal Code, 1860. 

Mr. Pais pointed out that the violence in the Delhi riots had taken place between 23rd February to 25th February and all FIRs were registered by the end of the month. It was not as if the Delhi Police was faced with further developments in the case.  

Mr. Pais pointed to the FIR against Safoora Zargar, who was arrested on 10th April on the basis of FIR bearing no. 48/2020. She was granted bail by April 14th and was immediately arrested on the basis of another FIR registered against her, alleging the commission of non bailable offences. Mr. Pais points out how the FIRs against her escalated from making out bailable offences to  non bailable offences such as Murder, Sedition, etc. On the same set of facts. Infact, during the trial for grant of bail to Safoora Zargar in the second FIR, the Magistrate, being unsatisfied by the reply filed on behalf of Delhi Police, directed the Delhi Police to file a better reply. Mr. Pais argued that instead of filing a better reply, the Delhi Police invoked the Unlawful Activities Prevention Act, 1967 ("UAPA"). 

Thus, Mr. Pais pointed out how the Delhi Police wrongfully and malafidely invoked UAPA on various occasions to ensure that the accused are not released on bail. He argued that the FIRs were not worth the paper they were written on.  

 2) No crime made out from the only direct evidence provided against the accused  

Mr. Pais further argued that the FIR refers, while referring to multiple speeches made at different places does not produce any of the said speeches. It only produced the speech made by the accused in Amravati in February, which Mr. Pais had read out before the court in the last date of hearing and a video of which was also played before the court today. 

Mr. Pais argued that on the day of registering the FIR, the Special Cell did not have raw footage of the Amravati speech and that it had registered the FIR on the basis of a news clip circulated by a politician on Twitter. He argued that on the day of registering the FIR, the police had not even seen the speech and had no material to formulate the FIR and had seen the speech only after registering the FIR.  

However, even if one were to consider the speech made by the Accused in Amravati, it cannot by any stretch be argued to be seditious or inciteful and certainly cannot attract the rigours of the UAPA. One may have varying opinion on the content of the speech, but it cannot be held to constituted a crime. Mr. Pais further submitted that while the speech was certainly made against the government and its policies, namely, Citizenship Amendment Act, 2019, it does not warrant the arrest of the accused.  

 3) The crowd to which the speech was made was seated and not incited  

Mr. Pais, while referring to the test laid down in Balwant Singh & Anr. V State of Punjab, argued that the crowd being addressed in the speech in question was fully seated and could not be seen to be incited in any manner. Moreover, no witnesses examined during the investigation claimed to have been incited by the speech of the accused made in Amravati. Thus, there was no live link between the speech made and the eruption of the violence in Delhi.  

Mr. Pais also added that the speech itself generally called for peaceful protests upon the arrival US president Donald Trump to India. The accused did not refer to any particular geographical location for the protest and thus it could not be argued that the violent riots in North East Delhi could be incited by the speech.  

Case Title: Umar Khalid Vs. State of NCT Delhi

Read More: “Umar Khalid’s speech hateful & inciteful”: Delhi High Court during oral exchange in plea challenging refusal of bail
Read More: BREAKING: Delhi Court rejects bail application of Umar Khalid in Delhi Riots larger conspiracy case(s)