Former JNU scholar Umar Khalid informed the Delhi High Court on Thursday that the charges against co-accused individuals, who are currently out on bail, in the UAPA case alleging a larger conspiracy behind the 2020 North-East Delhi riots are more severe than those against him. 

Senior Advocate Trideep Pais presented these arguments while making rebuttal submissions in Khalid's bail plea before a division bench comprising Justice Navin Chawla and Justice Shalinder Kaur.

Responding to the prosecution's claim that Umar Khalid was a member of various WhatsApp groups allegedly used to plan the riots, Senior Advocate Trideep Pais argued that merely being part of such groups without sending any messages does not constitute a crime. 

Referring to the DPSG and JCC WhatsApp groups, Pais pointed out that two other co-accused, Devangana Kalita and Natasha Narwal, were also members of these groups and are currently out on bail.

“Merely being in Whatsapp group is not criminally wrong. I haven't even spoken,” Pais said.

Pais argued that Khalid had sent only five messages in the DPSG group, primarily sharing the locations of various protest sites.

“Regarding JACT group, I have nothing to do with it. I never sent any message in the group. There is a statement that the group is created at my behest. It is hearsay,” he said.

Pais further contended that no recovery, monetary or otherwise, had been made from Khalid. He also refuted the prosecution's claim that the alleged secret meeting on the night of February 23-24, 2020, was clandestine, asserting that it was not secretive at all.

“Ishrat Jahan and Devangana Kalita have roles far more in terms of involvement than me…. Both are on bail…,” he said.

At this point, the Court asked Pais to demonstrate the change in circumstances justifying Khalid's bail plea. In response, Pais argued that the prolonged period of custody and the delay in trial since the rejection of his initial bail plea by the trial court constituted a change in circumstances.  

He further contended that both the trial court (while rejecting Khalid’s first regular bail plea) and the High Court (while upholding the trial court’s order) had accepted the witnesses' statements at face value, as per the Watali case. However, he pointed out that subsequent rulings have clarified that a special judge under UAPA can conduct a deeper analysis of witness statements to assess their probative value.

“Your lordships today have the sanction to go into the probative value of the statements and see if the offence under UAPA is made out…. One and half years of incarceration since my first bail rejection, 2 years since appeal was dismissed, now 4 years and five months of incarceration till today. Increased period of incarceration and delay of trial itself is the ground (for bail),” Pais said.

Pais further argued that the prosecution intends to examine 800 witnesses in the case, yet charges have not been framed even after five years. Given this significant delay, he emphasized that prolonged incarceration without trial should be considered a factor for granting bail.  

The matter has now been scheduled for a hearing next month. The division bench is currently hearing bail pleas filed by Umar Khalid, Sharjeel Imam, Mohd. Saleem Khan, Shifa-Ur-Rehman, Shadab Ahmed, Athar Khan, Khalid Saifi, and Gulfisha Fatima.  

FIR 59 of 2020 was registered by the Delhi Police's Special Cell under various provisions of the Indian Penal Code, 1860, and the Unlawful Activities (Prevention) Act, 1967. The accused in the case include Tahir Hussain, Umar Khalid, Khalid Saifi, Ishrat Jahan, Meeran Haider, Gulfisha Fatima, Shifa-Ur-Rehman, Asif Iqbal Tanha, Shadab Ahmed, Tasleem Ahmed, Saleem Malik, Mohd. Saleem Khan, Athar Khan, Safoora Zargar, Sharjeel Imam, Faizan Khan, and Natasha Narwal.