Delhi High Court: In batch of criminal appeals filed under Section 21 (4) of the National Investigation Agency Act, 2008, by Sahrjeel Imam , Umar Khalid and other individuals alleged to be involved in the large-scale riots in National Capital Territory of Delhi in protest against the enactment of Citizenship Amendment Act, 2019 (‘CAA’) and the National Register of Citizens (‘NRC’), challenging the Trial Court orders dismissing their respective bail applications, the Division Bench of Navin Chawla and Shalinder Kaur*, JJ, held that even though the accused has a right to speedy trial and liberty under Article 21 of the Constitution, the discretion to deny bail, even when the undertrial has suffered long periods of incarceration, vests with the Constitutional Courts. Accordingly, the Court rejected the bail applications of all accused persons.
Background
The present matter is regarding the widespread communal violence carried out on and around the 22nd, 23rd, and 24th of February, 2020, which had resulted in the loss of 54 lives, including the death of a senior police officer and an Intelligence Bureau official, grievous injuries to several police officers and members of the public, damage to more than 1,500 public and private properties, etc. The case put forth by the prosecution was that the entire incident was a deep-rooted criminal conspiracy hatched by the accused persons and several others to incite premeditated, well-orchestrated riots that would have nationwide impact.
The present case concerns the bail applications filed by Sharjeel Imam, Umar Khalid, Athar Khan, Shadab Ahmed, Abdul Khalid Saifi, Mohd. Saleem Khan, Shifa-ur-Rehman, Meeran Haider and Gulfisha Fatima. According to the prosecution, each person had a different but distinct role to play in the conspiracy which has been dealt with as under.
Role of Sharjeel Imam and Umar Khalid
The Prosecution contended that Sharjeel Imam and Umar Khalid were not mere participants but were rather the top conspirators and masterminds of the larger conspiracy to cause communal violence and riots in Delhi.
The timeline of the conspiracy and the roles played by Sharjeel Imam and Umar Khalid at each stage of the conspiracy is as follows:
-
5-12-2019: Sharjeel Imam, at the behest of Umar Khalid created a WhatsApp group called ‘Muslim Students of Jamia’ and added Umar Khalid as a member.
-
6-12-2019: Sharjeel Imam printed inciteful pamphlets to provoke communal tensions and called the muslim students to join the protest by United Against Hate (UAH) on 7-12-2019.
-
8-12-2019: A meeting was held at Jangpura wherein it was decided that Sharjeel Imam would mobilise and lead students from various colleges and universities
-
10-12-2019: A copy of the CAA was burnt on the JNU campus and a protest at Jantar Mantar was called by the CAB Team.
-
13-12-2019: Sharjeel Imam and Umar Khalid visited JMI university where they instructed their team members on the difference between dharna and chakka jam and instigated the crowd to protests and hold chakka jaams by inculcating the idea of disruption of essential services as a means to achieve their goals. This led to riots at Jamia Gate 7 where civilians and 20 police personnel sustained injuries, private and public property was damaged and essential services were disrupted.
-
15-12-2019: Sharjeel Imam and Umar Khalid visited JMI University again and instigated the protestors into a violent riot at Jamia Nagar Police Station and New Friends Colony. The riot resulted in injury to 45 Police personnel and 95 civilians and damage to 3 Police motorcycles, QRT Gypsy, 3 DTC and 8 private buses.
-
15-1-2020 — 23-1-2020: Sharjeel Imam visited various places to mobilise the muslim population against CAA and NRC.
-
24-1-2020; Umar Khalid held a meeting at Seelampur protest site and stated that spilling of blood of the policemen was the only means to bring the government to its knees and secure withdrawal of the CAA and NRC. In the said meeting, he directed the co-accused persons to induce women of Seelampur to gather knives, bottles, acids, stones, chili powder, and other dangerous materials to be used in the riots.
-
17-2-2020: After news of State visit of the President of United States of America broke out, Umar Khalid gave provocative speeches to incite people to protest on the dates of the dignitary’s visit.
-
22-2-2020: At the directions of Umar Khalid, protesters were moved from one protest site to another to undertake chakka jaams, thereby, completely blocking the public roads and highways.
-
23-2-2020: A similar course of action allegedly occurred on at other protest sites, with protestors being moved in coordination to create mass chaos. These chakka jaams escalated into violence, damaging properties, public and private, and attacks on police and Non-Muslims.
The prosecution had, thus, attributed to them the role of being mobilizers, ideologues, and active participants in several violent protests, including the riots of 13th-16th December 2019 at Jamia Nagar and New Friends Colony, which involved destruction of public property and injuries to police personnel.
Role of Athar Khan, Shadab Ahmed, Abdul Khalid Saifi and Mohd. Saleem Khan
Athar Khan, Shadab Ahmed, Abdul Khalid Saifi and Mohd. Saleem Khan (collectively ‘the other accused persons’), were responsible for creating, organizing, and managing the protest sites and were alleged to have attended conspiratorial meetings where the creation of additional protest sites and making them women and children centric was discussed, as well as where it was planned to carry out a chakka jaam during the visit of the President of the USA.
All the other accused persons, except Saleem Khan, were alleged to be members of at least one or more groups, such as Delhi Protest Support Group (‘DPSG’), CAB Team, UAH, etc., and were regularly present at the secret meetings, held by key conspirators at undisclosed locations.
The other accused persons were alleged to have participated in discussions regarding the sequential and coordinated destruction/disabling of almost 30 government-installed CCTVs over a stretch of 4—5 km in Chand Bagh and adjoining areas. The prosecution had further alleged that Saleem Khan had been caught actively dislocating one of the cameras, thereby confirming the execution of the plan. Furthermore, once the CCTV cameras were dislocated/covered, the rioters had launched coordinated attacks using firearms, acid, swords, and other sharp weapons, causing injuries and deaths of law enforcement officers.
Role of Shifa-Ur-Rehman and Meeran Haider
Shifa-Ur-Rehman and Meeran Haider were core members of Jamia Coordinate Committee (JCC) which was constitute for mass mobilization of muslim population to protest against CAA/NRC. The prosecution submitted that Shifa-ur-Rehman and Meeran Haider were responsible for setting up and managing the protest sites at Jamia, Khureji, Shaheen Bagh, Hauzrani, Seelampur-Jafrabad, Turkman Gate, Kardampuri, Mustafabad, Rehman Chowk-Shri Ram Colony, Inderlok-Metro Gate No. 4, etc. and to aid in sustaining and managing these sites and other protest sites, they were actively engaged in raising and collecting funds from various sources. They were alleged to be amongst the key fundraisers for the protest sites and the ensuing riots in the North-East Delhi, bearing responsibility of managing, sustaining and orchestrating Chakka Jaams at multiple locations.
The prosecution contended that Shifa-Ur-Rehman, being the President of Alumni Association of Jamia Milia Islamia (AAJMI), misused his position and had financed the riots to the tune of Rs. 8.90 lakhs. He used fake bills of expenses in the name of AAJMI to adjust the money by concealing the real expenditure on riots. It was further alleged that he had collected and distributed money to engage women and children to be a part of the protest so that the Police would refrain from using any force against them.
The prosecution had further alleged that Meeran Haider made regular appeals on the WhatsApp groups for mobilization and Chakka Jaam and had visited various protest sites in Delhi to instigate the Muslim population to cause Chakka Jaam under the guise of protests. Furthermore, Meeran Haider was alleged to have been privy to fundamental strategies, planning and schemes of key conspirators.
Role of Gulfisha Fatima
The prosecution alleged that Gulfisha Fatima had played an active role in execution of the conspiracy, as she was responsible for managing and actively guiding the protest sites at Seelampur-Jafrabad in North East Delhi areas. She was further alleged to have created a 24×7 sit-in protest site at Madina Masjid, Seelampur.
Gulfisha Fatima was also alleged to be behind the creation of WhatsApp groups called ‘Warrior’, and ‘Aurton Ka Inquilab’.
She was also alleged to be a part of the conspitorial meeting wherein Umar Khalid had allegedly given directions for stockpiling red chilli powder, acid, bottles, and sticks. The prosecution further stated that in furtherance of the conspiracy, Gulfisha Fatima, along with the other co-accused, had mobilised around 300 women at Seelampur, Jafrabad to block the road at Jafrabad Metro Station and incited them to attack the Police using chilli powder, stones, sticks, and other dangerous articles.
Analysis, Law and Decision
Long Incarceration as ground for bail
The common argument raised and emphasised throughout all the criminal appeals seeking regular bail, was on the point of delay in trial and the period of incarceration already undergone by the accused as undertrials.
The Court noted that while grant of bail is the rule and refusal is the exception, the exercise of discretion depends upon the facts and circumstances of each case. While adjudicating bail applications for offences under such special statutes like the Unlawful Activities (Prevention) Act, 1967, (‘UAPA’) the Court is required to take into consideration the specific provisions governing grant or refusal of bail.
The Court further stated that the discretion to grant bail is circumscribed by virtue of Section 43D (5) of the UAPA. The proviso itself states that the accused person shall ‘not’ be released on bail if the Court, upon perusal of the case diary or the final report submitted by the investigation agency, is of the opinion that there are reasonable grounds to believe the accusations against the accused are prima facie true.
The Court opined that while the Constitutional Courts are well within their powers to grant bail to an undertrial who has suffered a long period of incarceration pending trial, the grant of bail on the sole ground of long incarceration and delay in trial is not a universally applicable rule in all the cases. The discretion to grant or deny bail vests with the Constitutional Court, depending upon the peculiar facts and circumstances of each of the case.
Right to protest and free speech
The Court noted that while the right to participate in peaceful protests and to make speeches in public meetings is protected under Article 19(1)(a) of the Constitution, and the same cannot be blatantly curtailed, it is not an absolute right, as it is subject to the reasonable restrictions imposed by the Constitution. If the exercise of an unfettered right to protest were permitted, it would damage the constitutional framework and impinge upon the law-and-order situation in the country. Any conspiratorial violence under the garb of protests or demonstrations by the citizens cannot be permitted. Such actions must be regulated and checked by the State, as they do not fall within the ambit of the Freedom of speech, expression, and association.
Role of Sharjeel Imam and Umar Khalid
The Court considered the evidence on record and opined that prima facie it appeared that Sharjeel Imam and Umar Khalid were the first ones to act after the CAB was passed in early December 2019, by creating WhatsApp groups and distributing pamphlets in the Muslim populated areas calling for protests and Chakka Jaams, including the disruption of essential supplies.
The Court further observed that the contention of Sharjeel Imam, that he was in custody at the time of the riots and State visit of the President of the USA and was therefore not a part of the riot conspiracy, had no merit. The Court opined that, the mere absence of Sharjeel Imam a few weeks prior to the ultimate riots, and Umar Khalid’s absence a day or two before, at the present stage, might not be sufficient to mitigate their role, as they had been alleged to be the key conspirators in planning and designing the scheme of events.
Furthermore, the Court noted that Umar Khalid had contended three grounds for bail, first, the passing of the judgment of the Supreme Court in Vernon v. State of Maharashtra, (2023) SCC OnLine SC 885, second, a plea for bail on the ground of parity with the co-accused who were granted bail by the Court, and third, the period of incarceration undergone.
On the first limb of the contention, the Court stated that in the Vernon case, the Supreme Court had held, that while examining the question of grant or refusal of bail and to satisfy the ‘prima facie test’, there has to be a surface analysis of the quality or probative value of the evidence to satisfy the Court of its worth. In the present case, the probative value of the evidence against Sharjeel Imam and Umar Khalid, prima facie was not weak. And the evidence put forth by the prosecution could not be ignored.
Insofar as the plea of parity was concerned, the Court noted that the orders granting bail to the co-accused persons Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha, had been challenged before the Supreme Court and the Supreme Court, vide order dated 18-6-2021, had stated that the order shall not be treated as a precedent and cannot be invoked for seeking parity, either by co-accused or any other person in any matter.
With regards to the delay in trial and prolonged incarceration, the Court reiterated the stance taken above that considering the magnitude of the conspiracy and the plethora of investigations, evidences and witnesses being gathered for the trial, the pace of the trial would progress slowly. A hurried trial would be detrimental to all parties involved since the present is not a case of regular protest or riot matter, but rather a premeditated, well-orchestrated conspiracy to commit unlawful activities threatening the unity, integrity, and sovereignty of India.
Accordingly, the Court dismissed the bail application of Sharjeel Imam and Umar Khalid.
Role of Athar Khan, Shadab Ahmed, Abdul Khalid Saifi and Mohd. Saleem Khan
The Court noted that accused persons had participated in several key meetings where protest sites like Khureji, Chand Bagh, Karawal Nagar, Kardam Nagar, Nizamuddin and others were created. The appellants were also members of various WhatsApp groups wherein they managed, organized and looked after several of the protest sites.
The Court opined that the evidence on record prima facie showed that Athar Khan and Shadab Ahmed had agreed to destroy/cover CCTV cameras and these instructions were given to Saleem Khan who could be seen in the CCTV footage dislocating one of the cameras with a stick-like object.
The Court further noted that Abdul Khalid Saifi was alleged to be involved in raising and receiving funds for procuring firearms and managing the protest sites
Thus, the Court opined that each member of the conspiracy, particularly the present appellants, were prima facie assigned a specific role in furtherance of the conspiracy, till its execution and were therefore, not entitled to bail at this stage.
Role of Shifa-ur-Rehman and Meeran Haider
The Court noted that the possibility of misuse of Shifa-Ur-Rehman’s position as President of AAJMI could not be ruled out especially when certain bills had been recovered from the AAJMI’s office.
The Court observed that both Shifa-Ur-Rehman and Meeran Haider were part of JCC and their meetings took place in the AAJMI office. Call Detail Records indicated that they were connected with each other and with Umar Khalid. Meeran Haider was alleged to have given money to AAJMI in furtherance of the conspiracy.
Thus, the Court opined that prima facie, Shifa-Ur-Rehman and Meeran Haider appeared to have been working closely together in arranging funds for carrying out the conspiracy and were therefore, not entitled to bail at this stage.
Role of Gulfisha Fatima
The Court noted that Gulfisha Fatima had played her role in the execution of the conspiracy, being one of the persons responsible for managing the protest sites in Seelampur and having attended conspiratorial meetings wherein Umar Khalid had allegedly instructed them to escalate the protests into riots by resorting to violence and by using chilli powder, sticks, stones, etc., and to coordinate chakka jaams during the visit of the President of the USA
The Court noted that in a case of conspiracy, it is not necessary that all the accused persons must be involved in all facets of the criminality. Participation in one group or the other, and the connectivity of Gulfisha Fatima with the co-accused persons, including Shadab Ahmad, Umar Khalid etc, were factors to be considered.
Furthermore, the WhatsApp groups that Gulfisha Fatima had allegedly created, out of which one revolved around coordination in protests and ensuring that plenty of women participate in the protests was a factum that could not be seen in isolation. The Court also noted that she had actively participated in enticing women to escalate the level of violence and had collected money from co-accused Tahir Hussain to manage the protest sites.
Gulfisha Fatima had raised the contention that her level of participation was co-terminus with the participation of co-accused Devangana Kalita and Natasha Narwal who had already been granted bail. However, the Court opined that prima facie, the role ascribed to Gulfisha Fatima, as reflected from the material on record, was distinct than that of the co-accused Devangana Kalita and Natasha Narwal in the alleged conspiracy.
Thus, the Court held that the plea of parity could not be taken by Gulfisha Fatima and therefore, the Court rejected her bail application as well.
[Sharjeel Imam v. The State of NCT of Delhi, Crl. A. No.184 of 2025, decided on 2-8-2025]
*Judgment authored by: Justice Shalinder Kaur
Advocates who appeared in this case:
For the Appellant: N. Hariharan, Salman Khurshid, Rebecca M. John, Trideep Pais, Senior Advocates. Kathik M., Rahul Dev, Punya Rekha Angara, Aman Akhtra, Vaundhara N., Sana Singh, Vinayak Gautam, Shivam Sharma, Diksha,Vasundhara Raj Tyagi, Sushil Bajaj, Sarim Naved, Harsh Bora, Maulshree Pathak, Mohammad Shahrukh, Shri Singh, Faraz Maqbool, Sana Juneja, A. Sahitya Veena, Chinmayi Chatterjee, Vismita Diwan, Deepshikha, Arunima Nair, Swati Khanna, Bilal Anwar Khan, Anshu Kapoor, Sidra Khan, Gautam Khazanchi, Vaibhav Dubey, Anshala Verma, Ayush Sachan, Vinayak Chawla, Pooja Deepak, Rajat Kumar, Praavita Kashyap, Anushka Baruah, Arjun Dewan, Varisha Sharma, Aryan Deol, Sanya Kumar, Sahil Ghai, Sakshi Jain, Saloni Anubastha, Talib Mustafa, Ahmad Ibrahim, Ayesha Zaidi, Abhishek Singh, Jeet Chakrabarti, Akif Abidi Kartik Venu, Advocates.
For the Respondent: Tushar Mehta, Solicitor General, Chetan Sharma, ASG, Amit Prasad, SPP, Madhukar Pandey, SPP, Dhruv Pande, Aarush Bhatia, Ayodhya Prasad, Ruchika Prasad, Umesh Kumar Singh, Sulabh Gupta, Harshil Jain, Saravjeet Singh, Daksh Sachdeva, Amit Gupta, Shubham Sharma, Vikramaditya Singh, Advocates.
P.S. Kushwaha, Addl. CP (Special Cell), L.M. Negi, (Consultant, Special Cell), Insp. Anil Kumar, Insp. Suhaib Ahmad, ASI Sanjay Kumar, HC Goswami (Special Cell)
Buy Constitution of India HERE
