A Delhi court on Saturday rejected the bail pleas of student activists Omar Khalid and Sharjeel Imam in the larger conspiracy case linked to the February 2020 Delhi riots, holding that there were no grounds to “accept” the fresh petition as it could not even examine whether the circumstances had changed since the Supreme Court dismissed their petitions in January.
The order was approved by Additional Sessions Judge Sameer Bajpai of Karkardooma Courts.
The court held that there was no basis to consider the applications in light of the Supreme Court’s January 5 order denying bail to both the accused and setting specific conditions under which they could appeal their petition.
ASJ Bajpai noted that the difference of opinion between the Supreme Court’s January 5 judgment in the Gulfisha Fatima case and the subsequent judgment in the case involving Syed Iftikhar Andarabi has already been referred to a larger bench of the Supreme Court. The court of first instance said that until the matter was settled, it could not consider new applications for any reason.
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Khaled, the Imam mentioned the changing circumstances
In their petition filed in June, Khalid and Imam argued that there had been a change in circumstances after the May 18 ruling by a bench of Supreme Court Justices BV Nagaratna and Ujjal Bhuiyan while granting bail to Andrabi in a drug terror case investigated by the National Investigation Agency.
In that case, the Supreme Court expressed “serious reservations” about the reasoning adopted in the January 5 judgment, and observed that it may not have properly applied the principles laid down in the 2021 judgment in Union of India v. K. A. Najib, who acknowledged that prolonged imprisonment and delayed trial could exceed the legal restrictions on bail contained in Section 43D(5) of the Unlawful Activities (Prevention) Act.
The Supreme Court also expressed reservations over the January 5 directive that Khaled and Imam could renew their pleas only after cross-examination of protected witnesses or after one year, whichever is earlier.
However, ASJ Bajpai held that the lower court was bound by the earlier order of the Supreme Court.
She noted that the Supreme Court specifically ruled that the defendants would not be free to renew their request for release on bail until after the completion of the interrogation of the protected witnesses relied upon by the prosecution or upon the expiration of one year from the date of the order, whichever occurred earlier.
“Thus, following the aforesaid order of the Hon’ble Supreme Court, this Court cannot entertain the applications and grant bail to the applicants. In fact, the applications are not maintainable and are hereby dismissed.”
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Delhi Police opposes Khalid’s bail application
The Delhi Police opposed these petitions, arguing that there was no change in circumstances and that both Khalid and the Imam played roles in the alleged conspiracy different from those of the other accused who were granted bail.
In opposing Khaled’s request, the prosecution said that the alleged change in circumstances on which it relied did not rise to the level of a fundamental or material development that required a reconsideration of bail. “Successive bail applications can be maintained only when it is proven that there has been a fundamental and material change in circumstances. No such change has occurred after the rejection of the applicant’s special leave application and review application,” the Public Prosecutor submitted.
The prosecutor said that Khaled’s reliance on some subsequent rulings and observations made in other cases did not constitute a change in circumstances. She claimed that the lower court was unable to effectively review or appeal the Supreme Court’s January 5 ruling.
The prosecution argued on the merits that the allegations against Khalid were serious and related to an alleged larger conspiracy that culminated in widespread communal violence in northeast Delhi.
She said multiple courts had already found that the statutory restrictions under Section 43D(5) of the UAPA applied to Khalid’s case. “The prosecution’s evidence is wide-ranging and includes protected witnesses and electronic evidence. The possibility of influencing witnesses, directly or indirectly, cannot be ignored,” the prosecutor said.
Prosecutors say the imam played a major role in the alleged plot
Opposing the imam’s petition, prosecutors said the Supreme Court had already ruled in January that he held a “distinct, significant and key role of ideological and strategic centrality” in the alleged plot. On this basis, the court said that the imam could not claim equality with the other defendants who were released on bail.
The prosecution further stated that the Supreme Court, after examining the indictment and electronic evidence, had already concluded that the charges against him were prima facie true.
“The statutory prohibition under Section 43D(5) operates with absolute rigor and completely strips the court of any remaining discretion to grant bail,” the prosecutor said.
The state rejects the Imam’s arguments
The Public Prosecutor also said that the Grand Imam’s reliance on an interim order issued by the Supreme Court on May 22 in the Ahmed extradition case was misplaced because the reference to a larger body did not amount to a declaration of law under Article 141 of the Constitution.
The prosecution also argued that Imam’s claim that he was arrested in another case on January 28, 2020, and was therefore not physically present in Delhi during the riots in February that year, had already been considered and rejected by the Supreme Court.
“The applicant leads a vast network of student activists and extremist cadres; releasing him at this vulnerable stage before being charged would fatally compromise the safety of witnesses, incite systematic intimidation and completely derail the integrity of the impending trial,” the prosecution said.
