Is being on Whatsapp group a crime: Umar Khalid in bail hearing

Seeking bail in the Delhi riots larger conspiracy case involving charges under Unlawful Activities (Prevention) Act (UAPA), student activist Umar Khalid’s lawyer today argued before a Delhi Court that the entire charge-sheet in FIR 59/2020 is a “fertile imagination” of the Delhi Police having no sense of consistency.

Senior Advocate Trideep Pais argued before Additional Sessions Judge Amitabh Rawat that the prosecution’s wish to paint every accused in the FIR with the same brush ‘crumbles when one looks at the Chargesheet’.

Pais began by submitting that were a total of 17 allegations stated in the Chargesheet against Khalid tracing back to various dates which included statements of witnesses under sec. 161 and 164 of CrPC. “I’ll show how UAPA is not made out, and the how the allegations are implausible,” Pais submitted.

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Reading out the first allegation which said that Umar Khalid asked Sharjeel Imam to make a Whatsapp Group and that the same was allegedly made under his directions, Pais submitted that constituting a WhatsApp group of Muslim students is not a terror.

He also argued that the said allegation had no evidence to show that Sharjeel Imam created the group on the directions of Khalid. “Not a single message, no communication between me and Sharjeel Imam prior to 15.12.2019 when the group started,” Pais argued.

“There is no single communication or WhatsApp message, no message sent by me. Being a part of a group is not a crime. Not a single witness statement to support that assertion. Opposition to a particular thing can have people from all hues,” he added.

Calling the Chargesheet and allegations a ‘script’, Pais submitted that the same has been nicely tied up so that the Prosecution can paint all the accused with the same brush.

“All I’m saying is your wish to paint every accused in FIR 59 with same brush crumbles when you look at charge-sheet. Do you have the sense of consistency in charge-sheet? No. Did you get statements of witnesses from that group? Where do you get it from? You get it from your mind. Half of it is fertile imagination of IO and script writers of this charge-sheet,” Pais argued.

Pais also denied the other allegation that Umar Khalid introduced Sharjeel Imam to Yogender Yadav. He argued that reference to Khalid as Imam’s mentor and senior in the Chargesheet was dangerous and an imagination of Investigating Officer.

“This is his wish, the officer who is writing the story wants to tell you this. But he forgets, he is not a script writer. He is an officer,” Pais argued.

This omniscient officer roaming around all of them has no statement. How is it constructive? Every assertion has a basis. This doesn’t have a basis,” he added.

Placing reliance on Sharjeel Imam’s speech, Pais argued that he clearly mentions about being alone and that the protest was done by him by his own initiative, thereby denying the allegations of Umar Khalid being a part of it. However, Pais also added that he was not making any submissions on the merits of Imam’s case.

“He clearly doesn’t seem like a person who wants to do something on somebody’s dictation. Ideologically also they are not aligned. They might want to paint me with the same brush, but they don’t have the material to do so,” Pais said.

Referring to the alleged meeting to commit the riots, Pais submitted thus:

Is chakka jam an offence? Is a meeting to say that our protest will involve chakka jam automatically a criminal conspiracy? None of this is said in this. Where does it say it’s a crime? This meeting has found itself on every news item, branded about like some great conspiracy.”

Pais then relied upon two statements of witnesses under sec. 161 CrPC and argued that first, they did not mention the alleged meeting to be a secret meeting and second, both the statements were not signed and did not have a statement under sec. 164 CrPC, therefore they could not be corroborated.

Dealing with the first witness who was the admin of the whatsapp group, Paid said:

At best what’s she saying, some of us met to discuss. Nothing else. The allegation was previous conspiracy of chakka jam. She says it’s just a bunch of people who opposed CAA and met.”
“None of the witnesses statements is signed or have their sec. 164 CrPC statement. Does the witness statement show a Conspiracy towards an illegal act? None of the Witnesses described the meeting as a secret meeting,” he added.

The matter will now be heard on November 2 and 8.

Previously Khalid had withdrawn his bail application filed under Section 439 CrPC after the prosecution’s objection on its maintainability. The Court was informed that a substituted application seeking bail under Section 437 CrPC has been filed.

Special Public Prosecutor Amit Prasad, while objecting the maintainability of bail plea filed by co-accused Ishrat Jahan in the case, submitted that application filed under Section 437 must have been moved in place of Section 439 of CrPC, primarily because the Court hearing the plea is a special court designated under UAPA Act and therefore exercises all powers that are before the Court of Magistrate within the rigours of Section 437 of CrPC.

On an earlier occasion, Khalid had informed the Court that the entire charge-sheet filed by Delhi Police in FIR 59/2020 reads 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.

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