SC judge recuses from hearing Umar Khalid bail; case adjourned to August 17

Justice Prashant Kumar Mishra, who had disagreed on granting interim bail to activist Teesta Setalvad in the 2002 Gujarat riots case, was part of the two-judge bench along with Justice AS Bopanna

Supreme Court of India (photo: IANS)
Supreme Court of India (photo: IANS)

Ashlin Mathew

The Supreme Court on Wednesday adjourned the bail hearing of former JNU scholar Umar Khalid to 17 August 2023 in the Delhi riots case after Justice Prashant Kumar Mishra recused from the case.

A bench of Justices Justices AS Bopanna and Prashant Kumar Mishra was hearing the case on Wednesday. As soon as the case came up for hearing, Justice Bopanna stated, “This will come before some other bench. There is some difficulty on part of my brother to hear this case.” The matter will come up for hearing on August 17.

Khalid had been arrested on 13 September 2020 under the Unlawful Activities (Prevention) Act for his alleged involvement in the riots which broke out in February 2020 in the national capital. He has been accused for being allegedly being one of the “key conspirators” in the northeast Delhi riots.

Khalid had filed the special leave petition in the apex court challenging the Delhi High Court decision to deny him bail last year. A notice was issued by the Supreme Court in the case on May 18 and the case came up for hearing on July 12 and July 24; both the times the case was adjourned. On July 12, Delhi police sought adjournment to file an affidavit against the bail and on July 24, Khalid’s lawyers sought adjournment as several of his advocates on record had taken ill.

Justice Mishra, who was appointed to the top court on 19 May 2023, was the judge who had disagreed with Justice Abhay S Oka on granting interim bail to activist Teesta Setalvad in the 2002 Gujarat riots case for allegedly fabricating evidence of witnesses in the case. As Mishra had disagreed, Oka had requested Chief Justice of India DY Chandrachud to constitute a larger bench to hear the matter. The three-judge bench headed by Justice BR Gavai and comprising Justices AS Bopanna and Dipankar Datta then had granted bail to Teesta.

Delhi High Court had denied Khalid bail on 18 October 2022 in the case. The division bench of Justices Siddharth Mridul and Rajnish Bhatnagar dismissed Khalid’s appeal challenging the trial court order denying him bail in March. Dismissing the appeal, the High Court observed that Khalid had participated in various meetings at Jantar Mantar, Jangpura, Shaheen Bagh, Seelampur, Jaffarabad and Indian Social Institute on various dates and his name is mentioned from the beginning of the conspiracy till the riots. The judges had claimed that the protests against Citizenship Amendment Act, 2019 (CAA) were heading towards the riots because “several conspiratorial meetings” were organised and Khalid had attended a few of them.

Khalid had moved the Delhi High Court after he was denied bail by the Karkardooma trial court on March 24. The trial court, while denying him bail, had stated that Khalid's presence in WhatsApp groups had to be read in totality and not piecemeal and that he was connected with many accused persons.

On Khalid's February 2020 Amravati speech, which the prosecution had used to underline that Khalid had called for a 'revolution', the court pointed out that the call to revolution may affect many beyond those who were visibly present.

"This court is of the view that possibly, if the appellant had referred to Maximilien Robespierre for what he meant by revolution, he must have also known what revolution meant for our freedom fighter and first Prime Minister Jawaharlal Nehru. He believed that democracy has made revolution superfluous after independence and how it meant the complete opposite of a bloodless change," the high court had said.

The Delhi Police has accused Umar Khalid in the conspiracy case related to the communal riots which broke out in north-east Delhi in February 2020. The FIR against Umar Khalid contains charges including Sections 13, 16, 17, 18 of the Unlawful Activities (Prevention) Act, Sections 25 and 27 of the Arms Act and Section 3 and 4 of the Prevention of Damage to Public Property Act,1984.

The initial chargesheet was filed against Pinjara Tod members and JNU students Devangana Kalita and Natasha Narwal, Jamia Millia Islamia student Asif Iqbal Tanha and student activist Gulfisha Fatima. Former Congress councillor Ishrat Jahan, Jamia Coordination Committee members Safoora Zargar, Meeran Haider, and Shifa-Ur-Rehman, former Aam Aadmi Party councillor Tahir Hussain, activist Khalid Saifi, Shadab Ahmed, Tasleem Ahmed, Mohd Salim Khan, and Athar Khan have been named in the case. Later, a supplementary chargesheet was filed against Khalid and JNU student Sharjeel Imam and they were the last to be included in the case.

Zargar, Kalita, Narwal, Tanha and Jahan have already been granted bail by the division bench of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani last year. Delhi Police had filed a special petition in the apex court challenging the bail granted by the Delhi High Court, but a bench of Justices SK Kaul and A Amanullah had dismissed the plea in May 2023.

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