The Delhi High Court today denied bail to ex-JNU activist Umar Khalid, who has been in custody since September 2020 for conspiracy to instigate riots in Delhi in 2020, broadly giving 10 reasons for the denial. Delhi Police had been working on FIR 59/2020, which invokes different charges under provisions of the Indian Penal Code (IPC) as well as the stringent Unlawful Activities (Prevention) Act 1967 (UAPA) against the accused, which primarily explains why Khalid would find it difficult to wriggle out of the clasps of law.

A division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar upheld the trial court order, which had denied bail to Khalid on 24 March, ruling that it did not warrant any judicial intervention.

Khalid had moved the Delhi High Court after he was denied bail by the Karkardooma Court on March 24. He was arrested on 13 September 2020 and has been in custody for 765 days. In the bail appeal, Khalid's counsel Senior Advocate Trideep Pais started arguments on 22 April and concluded on 28 July. 

The prosecution represented by Special Public Prosecutor Amit Prasad began arguments on 1 August and concluded on 7 September.

Following are the 10 reasons the high court gave to deny bail to Khalid:

1. Umar Khalid figures again and again in conspiracies to instigate Delhi riots

The high court said in its 52-page order that Umar Khalid's name had found a recurring mention from the inception of the conspiracy behind the 2020 demonstrations until the end of the riots that followed. The court noted that Khalid was a member of WhatsApp groups like DPSG and Muslim students of JNU and had participated in meetings where the alleged conspiracy to fan the riots was hatched.

2. Umar Khalid part of 'conspiratorial meetings', December 2019 - February 2020

The high court observed that Khalid was a part of different conspiratorial meetings held in Delhi between December 2019 and February 2020 — Jantar Mantar, Jangpura Office, Shaheen Bagh, Seelampur, Jaffrabad and Indian Social Institute — on different dates. These demonstrations leading to riots prima-facie "seem to be orchestrated" at these conspiratorial meetings, the court noted.

3. Protests pre-meditated, 'not typical'

The court said if the charge sheet and evidence collected in the course of the investigation is to be accepted, there was a premeditated conspiracy for causing disruptive chakka-jam and pre-planned protests at various sites in the national capital. The premeditated plan was engineered to "escalate to confrontational chakka-jam and incitement to violence and culminate in riots in a natural course on specific dates", it observed. "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," the high court divisional bench said.

Moreover, the attack on police personnel during the riots by "women protestors in front only followed by other ordinary people and engulfing the area into a riot" is the "epitome of a pre-mediated plan" and would prima facie be covered by the definition of "terrorist act" under the UAPA, the court said. "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 court said.

4. Allegations against Umar Khalid prima facie true

The bench inferred that the allegations against Khalid were prima facie true, clarifying that this observation would apply only to the limited scope of the bail application.

Khalid said in his defence that the embargo created by Section 43D(5) of UAPA applied in the case, but the court said that the term "prima facie" would mean that the accusation against the accused at first impression had to hold to invite the embargo of Section 43D (5). Besides, it said that the accusation must be good and sufficient on its face to establish a fact or the chain of facts constituting the alleged offence unless rebutted or contradicted.

"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 Unlawful Activities (Prevention) Act 1967," the high court said.

5. Amravati speech and 'krantikari salam' by Umar Khalid

In May, judges had questioned Khalid about his Amravati speech dated February 2020 and more particularly the words he had used in reference to Prime Minister Narendra Modi. He was asked specifically about the use of the terms "inquilabli salam" (revolutionary salute) and "krantikari istiqbal" (revolutionary welcome) at the beginning of his speech, which he had used as a greeting to invite the spirit of revolution.

Khalid's advocate had argued that revolution could be non-violent and submitted there was no immediate violence after his speech.

But denying him bail, the high court said it was not impressed by the argument as the call to revolution did not have to affect only the gathering in front of the orator. It said that the revolution perforce was not always bloodless and that was why the prefix, "bloodless", must be used with the term: "bloodless revolution".

"This court is reminded that although, the activity of 'revolution' in its essential quality may not be different but from the point of view of Robespierre and Pandit Nehru, in its potentiality and in its effect upon public tranquillity there can be a vast difference," the court said.

The court said that it could not turn a blind eye to the incriminating materials against Umar Khalid, noting that his speech had referred to the visit of then-US President Donald Trump, which according to the prosecution was picked on purpose for the 2020 riots, as it would be a rather inopportune moment for the government of the day.

6. Umar Khalid's presence, involvement in 'protests'

The court took note of the call data records (CDR) analysis to say that a flurry of calls was made before the riots between Khalid and the other accused. The court observed that the cumulative statement of the protected witnesses indicated Khalid's presence and active involvement in the 'protests' against the CAA and NRC.

"The CDR analysis is a matter of evidence which can be seen at the time of Trial and its veracity can be verified only after cross-examination. This court could very well examine this CDR analysis on a prima-facie basis, provided the accusation of the Appellant was limited to the aforesaid facts only, which is not the case herein. Admittedly the accusations are much beyond the said dates and meetings," the court said.

7. Commonality among those accused

The court rejected the defence's argument that there was no ideological meeting of minds between Umar Khalid and co-accused Sharjeel Imam, observing that there indeed existed a string of commonalities among all the accused. "It is admitted position that both the appellant and Imam are members of the same WhatsApp group.

"It is an admitted position that the duo participated in the Jantar Mantar protest. There is a statement of different protected witnesses, that speaks to the presence of the duo at several meetings including in the one held at the office of PFI," the court said.

8. Statements of witnesses must be trusted

While Khalid's advocate argued that the statements of witnesses were either false, being delayed or contradictory or could be concocted or coerced and should not be relied upon, the court said that at the stage of bail, it would take the statements of all witnesses at face value while their veracity could be tested only at the time of cross-examination when the trial happens.

9. Commission of terrorist acts under UAPA

As Section 15 of the UAPA defines a terrorist act whereas section 18 provides for the punishment for conspiracy of the commission of a terrorist act, the high court divisional bench said that under UAPA, it was not just the intent to threaten unity and integrity but the likelihood of the same, which was covered under Section 15, which defined a terrorist act.

The court said that the said provision in the UAPA included "not just the intent to strike terror but the likelihood to strike terror; not just the use of firearms but the use of any means of whatsoever nature, not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, that constitutes a terrorist act."

The court observed that under Section 18, not merely a conspiracy to commit a terrorist act but an attempt to commit or advocate the commission or advising it, inciting, directing or knowingly facilitating the commission of a terrorist act is punishable.

"In fact, even acts preparatory to the commission of terrorist acts are punishable under Section 18 of UAPA. Thus, the objection of the appellant that a case is not made-out under UAPA is 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 of the appellant is outside the scope and ambit of section 43D(5) of the UAPA," the court said.

10. Trial court order still applies

The Delhi High Court upheld the trial court order that had denied bail to Khalid. The divisional bench said that the lower court had rightly held that a finding had to be given on a cumulative reading of statements of all the witnesses and other events presented in the charge sheet, although there were inconsistencies in the statements of some protected witnesses.

"The learned sessions judge didn't miss the wood for the trees and has extensively dealt with the contention of the rival parties to arrive at a just decision, which cannot be faulted, especially when at the stage of bail, the learned judge was mandated to only be satisfied to the extent of accusation being "prima-facie true" and not conduct a 'mini trial' and return an elaborate findings relating to the veracity of the testimony of each witness, whose statements were recorded during the investigation," the court said.

The bench observed that under the UAPA, it was not just the intent to threaten unity and integrity but the likelihood of the same that was covered under Section 15, which defined a terrorist act.