Sr. Adv. Trideep Pais at Delhi HC: Witness Testimonies Contradict Claims in Charge Sheet On Umar Khalid

On May 30th, 2022, the special Bench of Justices Siddharth Mridul and Rajnish Bhatnagar reconvened in the Delhi High Court to continue hearing the bail application for activist Umar Khalid. For his alleged involvement in the 2020 Delhi Riots, Mr. Khalid has been accused of sedition and multiple other criminal offences, as well as of being a ‘terrorist’, as defined under the Unlawful Activities (Prevention) Act, 1967 (UAPA). He was previously denied bail in March 2022 by a Delhi Sessions Court. 

Representing Mr. Khalid, Senior Advocate Trideep Pais and Advocate Sanya Kuma continued to take the Bench through the 17 allegedly unsubstantiated accusations made against Mr. Khalid by the Delhi Police in their charge sheet. 

The hearings began with Advocate Sanya Kumar recounting five witness statements. These statements form the basis for an allegation in the charge sheet—that Mr. Khalid held a secret meeting in Delhi’s Seelampur on January 23rd, 2020. During this meeting, Mr. Khalid allegedly gave a ‘provocative’ speech where he plotted for the ‘anti-CAA protests’ in Delhi to escalate into riots and violence against the police and State. These citizen protests were waged in late 2019 and early 2020 against the Citizenship (Amendment) Act, 2020 (CAA)—opposition to them partly precipitated the Delhi riots in February 2020. 

Adv. Kumar: Partially Identical Witness Statements Contradict Chargesheet

Of the five witnesses—Sierra, Smith, Delta, Echo, and Gamma—only Sierra claimed that there was a secret meeting place to plan the riots in Seelampur. Sierra proceeded to say that Mr. Khalid incited the ‘local women’ of Seelampur to violence with the help of the members of Pinjra Tod—a Delhi-based collective of activists for women’s rights. The witness claimed that Natasha Narwal, a member of Pinjra Tod also booked under the UAPA for her alleged involvement in the riots, was present at the meeting. However, the Call Detail Record submitted by the police showed that she was not present at the alleged meeting place at that time.

Sierra claimed to have served tea at the meeting place and heard about Mr. Khalid’s plan there. Ms. Kumar argued that taking this at face value would run counter to the claim in the charge sheet—that Mr. Khalid was a ‘silent whisperer’ in this conspiracy. If he was truly behind the scenes while planning the violence, he would not have laid out his alleged plan in front of a stranger serving them tea. 

Ms. Kumar pointed out that the portions of the statement made by the witness Smith are identical to the statement given by Sierra. After reading these parts to the Bench, Bhatnagar J asserted that these similarities may simply show that the statements corroborate each other. Ms. Kumar pushed against this notion, stating that there is a difference between corroborative witness statements and an identical recounting of events.

The statement made by Echo to the police made similar assertions about Mr. Khalid having conspired to incite violence, but mentioned no source for this information. Further, while Echo did not mention a secret meeting or a speech in their police statement, they did so in their statement made afterwards to the Magistrate. 

The statement made by Gamma to the police makes no mention of Mr. Khalid or a secret meeting. However, in a manner similar to Echo, Gamma mentioned both claims in a statement to the Magistrate six days later. 

Ms. Kumar attempted to show that the witnesses who claimed the speech was ‘provocative’ did not furnish any evidence. After she completed recounting the statements of the five witnesses, Senior Advocate Trideep Pais took over the arguments.

Sr. Adv. Pais and the Bench Disagree over Weightage of Evidence

Mr. Pais continued his previous line of argument, arguing that the broad probability of Mr. Khalid having committed the offences must be considered when determining whether he should be granted bail. He argued that the Delhi Sessions Court didn’t consider the probability of the accusations made in the charge sheet being true, simply taking them at face value. 

Mr. Pais brought up the Facebook post that had been included in the charge sheet, posted by one of the alleged co-conspirators in the riots, Syed Imran. The post was a picture of the alleged secret meeting place in Seelampur. He raised a question about why such a picture would be posted on Facebook and displayed publicly if Mr. Khalid was indeed a terrorist conspiring to riot as alleged in the charge sheet. 

Shortly thereafter, Mr. Pais and the Bench disagreed once again regarding the weightage of the evidence in the charge sheet and the level at which it should be scrutinised. Mr. Pais relied on the SC’s Judgment in National Investigation Agency v Zahoor Ahmad Shah Watali (2019) to make his arguments. 

In Watali the SC held that, in order to deny bail, the evidence 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.’

Mr. Pais argued that this meant the Court must examine the veracity and reliability of evidence in order to determine whether it is ‘good and sufficient’. However, Mridul J on behalf of the Bench said that they must take the allegations in the charge sheet at face value as this was not the trial stage for the hearing and charges were yet to be filed. 

With regards to the speech made by Mr. Khalid in Amravati, Mridul J stated that it would not constitute a terrorist act—it may be distasteful and instead grounds for defamation or other offences.

The Bench stated, to Mr Pais’ dismay, that the hearings would have to resume after the vacation. There would not be enough time to hear both Mr. Pais and the prosecution on a daily basis as there were other matters to hear before the vacation. 

Mr. Pais requested for time to be granted to complete the arguments as Mr. Khalid would have to remain in custody in the interim period. However, this was to no avail. The matter is scheduled to be heard on the first day of the Delhi High Court’s re-opening on July 4th, 2022.