Delhi High Court: In an appeal under Section 21(4) of the National Investigation Agency Act, 2008 (‘NIA Act’) read with Section 43-D(5) of the Unlawful Activities Prevention Act, 1967 (‘UAPA’), seeking setting aside of impugned order passed by Sessions Judge, whereby Umar Khalid’s bail application was dismissed, the division bench of Siddharth Mridul and Rajnish Bhatnagar, JJ. has been observed that the allegations against Umar Khalid are “prima facie true” and hence, the embargo created by Section 43D(5) of UAPA applies squarely regarding the consideration of grant of bail to him. Thus, his application seeking regular bail was rejected.

In this case, the First Information Report (FIR) came to be registered by the Crime Branch on 06.03.2020, alleging that the riots which took place in Delhi in 2020 were the result of a preplanned conspiracy between Umar Khalid and his associates from different organisations, who have planned and carried out the said conspiracy which culminated in the said Riots. It has been alleged that Umar Khalid had made provocative speeches at different locations and made an appeal to people to come out and block the streets, during the visit of US President Donald Trump, to publicize, at an international level, that minorities were being targeted and discriminated against in India.

The Court referred to the decision in Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, wherein the Court laid down the factors to be borne in mind while considering a bail application. Further, the Court observed that when it comes to offences punishable under special enactments, such as the UAPA, 1967, something more is required to be kept in mind in view of the special provisions contained therein.

The Court referred to the decision in NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, and viewed that as the charge sheet has been filed under offence punishable under Section 16, 17, 18 of the UAPA, which are a part of Chapter IV, thus the present case will be covered by stringent conditions for grant of bail in sub-section (5) of Section 43D. Further, by virtue of the proviso to subsection (5), the Court must be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true, which means that the materials/evidence collated by the investigating agency in reference to the accusation in the FIR, must prevail until contradicted or disproved by other evidence, and on the face of it, shows the involvement of such accused in the commission of the offence.

The Court viewed that a charge-sheet is merely an expression of the opinion of the investigating officer and as such besides the averment made in the charge-sheet, the material available in totality must be considered while granting or rejecting bail. However, in the present case, there are two-fold issues to be decided that whether the impugned order needs any interjection in view of the appeal filed by Umar Khalid under section 21(4) of the NIA Act and, as to whether he in view of the material on records, is entitled to the regular bail.

The Court agreed with the findings of the Sessions Judge and observed that the objection of Umar Khalid that a case is not made-out under UAPA, was based on assessing the degree of sufficiency and credibility of evidence, not the absence of its existence, but the extent of its applicability; but such objection is outside the scope and ambit of Section 43D (5) of the UAPA.F urther, after the examination of charge sheet and taking into consideration the fact that Umar Khalid was in constant touch with other co-accused persons, including Sharjeel Imam, who is allegedly the head of the conspiracy; the Court viewed that it is difficult to form an opinion that there are no reasonable grounds for believing that the accusation against him is prima facie not proved.

Thus, the Court observed that its prima facie appears to be a premeditated conspiracy for causing disruptive chakka-jam and preplanned protests at different planned sites in Delhi, which was engineered to escalate to confrontational chakka-jam and incitement to violence and culminate in riots in natural course. Further, the protest planned was “not a typical protest” normal in political culture or democracy, but one far more destructive and injurious, geared towards extremely grave consequences. Thus, as per the pre-meditated plan there was an intentional blocking of roads to cause inconvenience and disruption of the essential services to the life of community residing in North-East Delhi, creating thereby panic and an alarming sense of insecurity. The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such premediated plan and as such the same would prima facie be covered by the definition of ‘terrorist act.

It was also observed that different witnesses have stated the role of Umar Khalid about the open discussion on violence, riots, finance and weapons. Further, the weapons used, the manner of attack and the resultant deaths caused indicate that the said acts were pre-planned, as the acts which threaten the unity and integrity of India and cause friction in communal harmony and creates terror in any section of the people, by disturbing the social fabric are terrorist acts.

It was also observed that the name of Umar Khalid finds recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots. Further, he was a member of the WhatsApp group of Muslim students of Jawaharlal Nehru University and participated in various meetings at Jantar Mantar, Shaheen Bagh, etc. Moreover, the call detail records depict that there had been many calls that post riots happened amongst Umar Khalid and other co-accused.

Moreover, it was viewed that the cumulative statement of the witnesses indicates the presence and active involvement of Umar Khalid in the protests, engineered against the Citizenship Amendment Act, that resulted into violent riots in February 2020, which began by firstly choking public roads, then violently and designedly attacking policemen and random members of the public, with firearms, acid bottles, stones etc., resulting in the loss of 53 precious lives and the destruction of property worth several Crores. Thus, the allegations against Umar Khalid are “prima facie true”.

[Umar Khalid v. State of National Capital Territory of Delhi, 2022 SCC OnLine Del 3423, decided on 18.10.2022]

Advocates who appeared in this case :

For the Appellant: Senior Advocate Trideep Pais;

Advocate Sanya Kumar;

Advocate Sahil Ghai;

Advocate Rakshanda Deka;

For the Respondent: Special Public Prosecutor Amit Prasad;

Advocate Ayodhya Prasad.

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