Seeking bail in the Delhi riots larger conspiracy case involving charges under UAPA, student activist Umar Khalid’s lawyer today argued before a Delhi Court today that while the protests against Citizenship Amendment Act were secular, it is the chargesheet filed by the Delhi Police which is communal.
Senior Advocate Trideep Pais argued before Additional Sessions Judge Amitabh Rawat that while the allegations in the chargesheet were a fertile imagination of the Investigating Officer, neither there was any presence of Khalid in Delhi at the relevant time nor was there any direct violence attributed to him including no traces of funding.
Umar Khalid Passes Test Of Supreme Court’s Watali Judgment: Pais
Pais began by submitting that the strongest test under the Unlawful Activities (Prevention) Act, 1967 is the judgment delivered by the Supreme Court in National Investigation Agency v. Zahoor Ahmad Shah Watali.
According to Pais, Umar Khalid passes the said test as laid down by the Apex Court.
Reliance was made on the relevant portions from the judgment wherein the Court held that “By its very nature, the expression “prima facie true” would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, 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 was also held that 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.
“I pass this test,” Pais submitted.
Investigating Officer Is A Script Writer, Written Novella In Chargesheet: Pais
Rebutting the allegation that a protest was held on December 10, 2019 in pursuance of common conspiracy, Pais submitted thus:
“I don’t know what is UAPA about this allegation. It’s not a story that is being written. I don’t know if by the CDR they are claiming me to be at Jantar Mantar. Nobody speaks of it. There is nothing to show my presence there. I have not been given the key also if they are claiming it from the CDR. Saying that I was in jantar mantar is like saying someone is at the bank nearby.”
Further, reading out the allegation that the creation of Jamia coordination committee was the brain child of Umar Khalid and Nadeem Khan, Pais called it a fertile imagination of the IO.
“This is literally the ‘tippadi’ of IO. They don’t use small words. They establish the conjectures. This is called fertile imagination. This person is not a IO. He is a script writer. Literally this novella this person has written,” Pais submitted.
Pointing out the contradictions in the chargesheet, Pais further argued that since the investigating agency has Umar Khalid’s mobile phone, they can verify the factum if the whatsapp groups as alleged by the prosecution were formed by him.
“I’m not on whatsapp group. They say that I started whatsapp group in which I’m not which they claim was started by Kumail Fatima. I’m saying the contrary, nobody should be an accused in this. If Kumail Fatima started the group and he is not an accused, how is that criminal on my part?” He argued.
“I want them to show how JCC was made by me. I’m not on other accused. I’m saying if you want to make an allegation, make it good,” Pais added.
Pointing Contradictions In Witness’s Statements
Pais then referred to the statements of a protected witness pseudonym as Bond who was also a part of the Jamia Coordination Committee to show that the same was fabricated.
Stating that his statement was recorded in August 2020, one month before Khalid’s arrest, Pais read out his sec. 161 as well as 164 CrPC statements to argue that his statements were not directly attributed to Khalid.
“He said Saiful and Asif informed him. Money is not attributed to me at all. If we take some other JCC that they are referring to, it’s not started by me. They other one also not started by me. This person miraculously gave you statement in August,” Pais argued.
“If Umar Khalid is a silent whisper, what are his allegations. You actually don’t have an evidence. Other than one witness in that whole crowd, not one other witness you didn’t find. You find this one person in August that too one month before my arrest.”
Chakka Jam Not An Offence, Cooked Up Chargesheet: Pais
Pais then submitted that while the prosecution pushed on claiming that chakka jam was equal to terror act, he submitted that Chakka Jam is not an offence and that it has been used by students and others while participating in various agitations.
“Look at the chargesheet. Let’s go back. You are writing this in September. Obviously you are cooking it up. But do you actually have the evidence that Umar Khalid was there,” he said.
On the allegation that women were paid money to sit on the protest site, Pais submitted:
“Has any of the woman come before you to say that money was given to them. First of all I take offense of this. Do they not have an agency? Don’t they have their own say to sit there and protest?”
“Apart from saying so and so introduced to so and so and somebody said something, there is nothing. He doesn’t use exact words. Broad statements are used.”
Umar Khalid’s Arrest Is Pick And Choose, Why Others Who Were Part Of Whatsapp Groups Not Made Accused? Pais Questioned
While claiming that Khalid’s arrest was a pick and choose for the reason of him being relevant to the Citizenship Amendment Act protests, Pais questioned the conduct of the investigating agency for not arresting other members of the Whatsapp groups as claimed by them in the chargesheet.
“Bond (witness) is part of JCC. Numerous names are in the group. If you read chargesheet, you’ll find you can’t distinguish between actions of Nadeem, Safoora and Asif and I can say that Umar’s case is better than them. You have chosen him because he is relevant to CAA. This is pick and choose,” Pais submitted.
Pais also argued tha the only evidence the prosecution has qua Umar Khalid was the untrustworthy witness statements and a direct speech which doesn’t speak of violence at all.
“Why is Bond not an accused? Your honour may think about this. This will come at repeated instances. Why are certain people accused and certain are not? There is no rational basis. This shows your motive. You have a political person who speaks and you want to frame him. If you were a fair Investigating agency you wouldn’t have attributed Tukde Tukde from other case’s chargesheet. Its a naked form of falsification,” he added.
He also submitted that the prosecution was trying to implicate him in two ways: first, Much after the riots happened they registered the case and second, They cooked up statements and simply matched Khalid’s CDR location and arrested him if they matched with co accused.
“Not a single witness speaks that women were exploited, that there was secular cover etc. In fact you’ll see a number of personalities who are educated, working in different fields, associated with CAA. Luckily they are not an accused. In fact the shoe is on the other side. The protest was secular. The chargesheet is communal,” he argued.
After hearing Pais, the matter was posted for further hearing on November 8.
Earlier, Pais had argued that the entire charge-sheet in FIR 59/2020 is a fertile imagination of Delhi Police having no sense of consistency.
He had also argued that the chargesheet read like a script of Amazon Prime show ‘Family Man’, having no evidence to support the allegations.
Pais had also argued that the chargesheet makes rhetorical allegations against Khalid, terming him the “veteran of sedition” without any factual basis. The hyperbolic allegations in the chargesheet “reads like a 9 PM new script of one of those shouting news-channels” and are reflective of the “fertile imagination” of the investigating officer, the lawyer argued.
Umar Khalid had also told the Court that the entire chargesheet is a fabrication and that the case against him is based on the video clips run by Republic TV and News 18 showing a truncated version of his speech.
The FIR against Khalid contains stringent charges including Sections 13, 16, 17, 18 of the UAPA, Sections 25 and 27 of the Arms Act and Section 3 and 4 of the Prevention of Damage to Public Property Act,1984. He is also charged of various offences mentioned under the Indian Penal Code, 1860.
In September last year, main 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.
Others who were charge-sheeted included former Congress Councilor Ishrat Jahan, Jamia Coordination Committee members Safoora Zargar, Meeran Haider and Shifa-Ur-Rehman, suspended AAP Councilor Tahir Hussain, activist Khalid Saifi, Shadab Ahmed, Tasleem Ahmed, Salim Malik, Mohd Salim Khan and Athar Khan.
Thereafter, a supplementary chargesheet was filed in November against former JNU student leader Umar Khalid and JNU student Sharjeel Imam in a case related to the alleged larger conspiracy in the communal violence in northeast Delhi in February.