Umar Khalid gets bail hearing in Delhi HC, next hearing on 4 March

Arguing for bail before the Delhi High Court on Thursday, former Jawaharlal Nehru University (JNU) student leader Umar Khalid contended that he should be granted bail based on the time he has spent in jail (four years and five months), the lack of a prima facie case against him, and the fact that other accused individuals facing more serious allegations have been granted bail in the 2020 Delhi riots conspiracy case. The court will continue hearing arguments on 4 March.

This argument was presented by Khalid’s counsel, senior advocate Trideep Pais, before the division bench of Justices Navin Chawla and Shalinder Kaur who are hearing the case on Khalid's behalf.

Khalid, Sharjeel Imam, Khalid Saifi, and several others have been charged under the Unlawful Activities (Prevention) Act (UAPA) and provisions of the IPC (Indian Penal Code) with allegedly being the “masterminds” behind the February 2020 riots, which left 53 people dead and over 700 injured. The violence erupted during protests against the CAA (Citizenship Amendment Act) and NRC (National Register of Citizens). Khalid was arrested by the Delhi Police in September 2020.

Pais argued that Khalid had not posted any messages relating to the mobilisation of protests, nor had any allegations been made against him in the WhatsApp chats being cited as evidence of his involvement. He emphasised that mere association with a group was not evidence of wrongdoing.

“I have not said anything; I have been roped in. I did not post any messages about how the protest would be organised, and these messages have not been attributed to me by the star witness. I only sent five messages in total, mostly responding to questions about the protest location and one message asking to de-escalate,” he said.

Pais further stated that Khalid was not part of the Jamia Awareness group, nor had he created it, calling the claim hearsay. "The person who claimed I created the group is named James, who also heard someone else say it," he added.

Justice Chawla then asked, "Oh, you're not a part of the group?" Pais reiterated, "I am not part of any Jamia group. Statements suggesting I created it are hearsay, and I will prove it."

Pais also pointed out that one witness claimed Gulfisha told them Khalid had said certain things, but these statements were not directly attributable to him. He argued that there was no criminality involved and that he had a strong case for bail. “I was not at Khureji; Devangana was, and she was granted bail,” Pais noted.

Pais argued that Khalid should be granted bail owing to the prolonged time he had already spent in prison and in line with the four co-accused — Ishrat Jahan, Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha — who had already been granted bail in the same case. He emphasised that, like the others, Khalid was seeking bail on grounds of prolonged detention as an undertrial. “Their cases are much worse than mine,” Pais contended.

Addressing the specific allegations against Khalid, Pais pointed out that no evidence had been recovered from him, or as a result of his disclosures. "No recovery has been made from me or at my instigation. I am not mentioned in any of the FIRs related to the 2020 violence, and no physical evidence links me to any violent acts," he argued.

Khalid's case, Pais added, was comparable to those of other accused like Kalita, whose bail was confirmed by the Supreme Court. “I was not present at any of the protest sites. Natasha, Asif, and Devangana have been granted bail, despite their roles being attributed to them. If they have been granted bail, I should also be entitled to the same consideration,” Pais said.

He also referred to a change in the law, citing precedents and judgments that supported his argument. He noted that the trial had not started, charges had not been framed, and others in similar situations had already been granted bail. "My prolonged custody and the increased period of incarceration should be taken into account," he concluded.

Khalid’s lawyer had previously pointed out that the chargesheet was prepared on 10 September 2020, just three days before he was arrested. "It was prepared for my arrest. The violence occurred in December and February, and the so-called secret meeting in January. There has been no recovery of weapons either," said Pais.

Pais said earlier in the NIA v. Zahoor Ahmad Shah Watali case, the judgement gave a strict view of when bail could be granted in UAPA cases and the law had held the field when Khalid's bail was rejected by the high court during the first bail application. However, it changed by the time Khalid had withdrawn his case from the Supreme Court in 2024 and submitted the case in the trial court again. However, the trial court had refused to look at the changed instances in law.

Referring to other rulings, Pais cited Shoma Kanti Sen vs State of Maharashtra, where the Supreme Court granted bail to former Nagpur University professor Shoma Sen in connection with the Bhima Koregaon case under UAPA. Several other prior rulings, including Vernon Gonsalves vs State of Maharashtra (2023), emphasised that courts should conduct a surface analysis of the statements to see their probative value when considering bail. These decisions aimed to balance individual liberty with national security concerns.

Additionally, a three-judge bench in Union of India vs K.A. Najeeb (2021) granted bail to a UAPA accused who had been detained for an extended period, stressing that restrictive bail conditions must be balanced with the right to a speedy trial.

Khalid was arrested on 13 September 2020 under UAPA for his alleged involvement in the riots in north-east Delhi in February 2020, and has been accused of being one of the "key conspirators" in the riots. The Delhi Police FIR against Khalid includes charges under sections 13, 16, 17, and 18 of the UAPA, sections 25 and 27 of the Arms Act, and sections 3 and 4 of the Prevention of Damage to Public Property Act 1984.

The other accused in the case include Kalita, Narwal, Tanha, former AAP councillor Tahir Hussain, Khalid Saifi, ex-Congress councillor Ishrat Jahan, Safoora Zargar, Sharjeel Imam, Meeran Haider, Gulfisha Fatima, Shifa-Ur-Rehman, Shadab Ahmed, Tasleem Ahmed, Saleem Malik, Mohd Saleem Khan, Athar Khan, and Faizal Khan. While Zargar, Jahan, Tanha, Narwal, and Kalita are out on bail, the others have been in jail for more than three years.

On 28 May 2024, additional sessions judge Sameet Bajpai of the Karkardooma Court denied Khalid’s second bail plea. In his second appeal, Khalid argued for bail based on his extended incarceration (over three years), the absence of a prima facie case, and the fact that others with more severe allegations have been granted bail.

His lawyers withdrew a previous Supreme Court petition in February 2024, citing a "change in circumstances" after the petition had been adjourned 12 times since May 2023.

This appeal in the high court comes after a Supreme Court ruling on 13 August 2024 that reinforced the principle that “bail is the rule, jail is the exception”, even for UAPA cases.