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Umar Khalid Bail Hearing: ‘Malice Is A Given In This FIR’

NEW DELHI — In Umar Khalid’s second hearing for bail in the Delhi riots conspiracy case, senior advocate Trideep Pais said that the Delhi Police chargesheet was built on three things: misrepresenting events, rhetoric that had no basis in any fact, statement, or evidence, and untruthful witness statements. On Friday, 3 February, Pais told Additional… Continue reading Umar Khalid Bail Hearing: ‘Malice Is A Given In This FIR’

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Former JNU Student Umar Khalid speaks during a protest over the CAA at Jantar Mantar on 3 March 2020 in New Delhi. (ANI Photo)

NEW DELHI — In Umar Khalid’s second hearing for bail in the Delhi riots conspiracy case, senior advocate Trideep Pais said that the Delhi Police chargesheet was built on three things: misrepresenting events, rhetoric that had no basis in any fact, statement, or evidence, and untruthful witness statements.

On Friday, 3 February, Pais told Additional Sessions Judge Amitabh Rawat, “The idea here is the creation of public opinion in order to substitute the lack of evidence to carry out your objective of unfairly prosecuting people when you have no material to prosecute.”

“59 is a skeleton within which you can bring in anybody or any event,” said Pais, referring to First Information Report (FIR) 59/2020 of the Delhi Crime Branch. “Nobody should have been arrested in 59.”

Khalid, a political activist who holds a Ph.D. from the Jawaharlal Nehru University (JNU) in Delhi, is charged in two cases related to Delhi riots in February 2020: FIR 59/2020, which pins the communal violence on the students and activists who were leading the protests against the Citizenship Amendment Act (CAA), charging 18 people with terrorism under the Unlawful Prevention Activities Act, 1967 (UAPA), and FIR 101/2020 of the Khajuri Khas police station.

Khalid has been incarcerated in Tihar jail for almost a year. He was arrested on 13 September 2020 in FIR 59/2020, registered on 6 March 2020, and on 1 October 2020 in FIR 101/2020, registered on 25 February 2020. Khalid was granted bail in FIR 101 on 15 April, but he remains incarcerated in FIR 59.

Misrepresenting events 

In the first online hearing for bail on 23 August, Pais had played the speech that Khalid made on 16 February at Amravati, Maharashtra, condemning the CAA, to demonstrate that contrary to the police claim about his client making speeches to instigate people, there was only one speech in question, and there was nothing illegal about it.

Pais had demonstrated how a police witness had given different versions about a witnessing a meeting between Khalid and two co-accused — former Aam Aadmi Party (AAP) councilor Tahir Hussain and social activist Khalid Saifi — on 8 January at the Shaheen Bagh in Delhi, in FIR 59 and FIR 101, in three disclosure statements and one statement made to a magistrate. In the first statement, the police witness made no mention of the meeting, and, in the subsequent statements, goes on to change whether he went into the building with the three men or waited outside.  

Disclosure statements — confessions made to the police — have no evidentiary value in a criminal trial, but have been relied on by the Delhi Police in FIR 59/2020. 

In the second hearing today, Pais reiterated the different versions of the police witness, asking, “Can we rely on this witness to keep a man in jail when he doesn’t remember on 21st May that this epic meeting happened on 8 January.” 

“I’m not for a moment going to labour anymore on malice. Malice is a given in this FIR. How much more malice can I show? We are trying to transcend malice and tell your honor that there is no way that these statements are consistent with each other in order to meet the test of UAPA,” he said.

While granting bail to Khalid in FIR 101/2020 in April, Additional Sessions Judge Vinod Yadav said, “This prima facie does not appeal to the senses.”

Judge Yadav has repeatedly expressed his disappointment at the state of the Delhi Police investigation into the Delhi riots, calling one case a “colossal wastage of the hard-earned money of taxpayers.”

“When history will look back at the worst communal riots since partition in Delhi, it is the failure of the investigating agency to conduct a proper investigation by using the latest scientific methods, will surely torment the sentinels of democracy,” he said, this week. 

READ: Umar Khalid Bail Hearing — Prosecution’s ‘Best Evidence’ Had To Be Produced By The Defense, Says His Lawyer

Rhetoric and misrepresentation 

Over the course of the hearing today, Pais referred to close to 20 passages in the chargesheet for FIR 59/2020, which he said were rhetorical, with no basis in any fact, statement or evidence. 

One passage in the chargesheet reads — “A veteran of sedition, the investigation of this case has established how far accused Umar Khalid has traveled from 2016 when he was the harbinger of the call — Bharat tere tere tukde tukde honge, Inshallah Inshallah” — to the present criminal conspiracy to commit a terrorist act…” 

This passage, Pais said, was not only baseless rhetoric but a misrepresentation of a past event.

2016 refers to an event that was organized on the JNU campus to mark three years since Afzal Guru — a Kashmiri militant sentenced to death for the 2001 terrorist attack on the Indian Parliament — was hanged unexpectedly and in secret in February 2013, the year before the 2014 general election. 

While showing the chargesheet prepared by the Delhi Police in a sedition case lodged against Khalid in 2016, to Judge Amitabh Rawat, Pais said that there was no reference to Khalid saying, “Bharat tere tere tukde tukde honge, Inshallah Inshallah…”

“No court document, no chargesheet, nobody has said that I made this statement,” said Pais. “If you were truthful, you would have placed this chargesheet (2016) as an annexure to this chargesheet (59/2020).” (In the 23 August hearing, Pais had said that it was the defense that produced Khalid’s speech made in Amravati, not the prosecution.)

“This chargesheet of FIR 59 is a white lie,” he said. 

READ:We Owe It To The Country And To History: Devangana Kalita & Natasha Narwal On Speaking Truth To Power

“Other than rhetoric, there is nothing against me”

The other “rhetorical” assertions made by the Delhi Police in the chargesheet of FIR 59/2020, Pais said, were about Khalid mentoring co-accused Sharjeel Imam, Khalid being at the convergence point of pan Islamica and ultra Left anarchism, Khalid and key conspirators giving communal colour to the anti-CAA protests, conspirators giving the protests a gender cover, a secular cover and a media cover, conspirators exploiting women and children, and Bangladeshi and Rohingya immigrants, to stoke communal frenzy, conspirators deploying the ‘guerilla strategy’ of blaming the police for the carnage, among others. 

“Rhetorical assertions in the chargesheet which have no basis in physical evidence or statements. It is just the fertile imagination of the police officer who wrote this…” said Pais. “Where do you get this? This reads like a nine pm news script of those shouting news channels. Those news channels that say whatever they want to say. Absolutely no responsibility.”

“He is not writing the script of Family Man,” he said, referring to a show on Amazon Prime. “He is writing a chargesheet. This reads like the fertile imagination of a scriptwriter.”

Contrary to the police assertions that the anti-CAA protests did not gain nationwide traction, it was confined to one community, and conspirators exploited women and children, Pais said, “Entirely untrue. Of course, there were nationwide protests against the CAA. Who said the key conspirators had ‘half-baked successes and failures?’ Which statement establishes this?”

“If CAA is wrong, isn’t it open for other communities to join, and they did join. Are you saying that this is a cause only for one community or that women don’t have the right to protest?” he said. “Have you taken (Section) 161 statements from protesting women saying that I was exploited?”

One passage from the chargesheet says, “What the continuing investigation has also established is that Umar Khalid was the ‘silent whisperer’ behind the first phase of the riots which took place in December 2019.”

Khalid, Pais pointed out, was never named in any of the FIRs connected with the violence around Jamia Millia Islamia University in December 2019.

One passage from the chargesheet that Pais highlighted as baseless rhetoric, says, “… Umar Khalid being one of the topmost conspirators as established so far and with his previous brushes with the law was clear in his mind that when Delhi will be thrown to fire he shall be keeping a safe physical distance to create the perfect alibi if the conspiracy gets exposed.”

Pais said that this passage was written to try and explain away the fact that Khalid was not in Delhi during the communal violence in the last week of February, his name did not appear in any of the 750 FIRs registered before 28 February 2020, and it appears for the first time on 6 March in FIR 59/2020.

Pais said that it was the language of the chargesheet that was communal, not his client. 

“If there is anybody who is giving anything a communal colour, it is the author of this chargesheet,” said Pais.

One passage says that Khalid in a meeting in Seelampur had said that the protests should ultimately escalate to riots and result in the “spilling bloods of policemen.” Noting that he would demolish the police claims regarding this meeting in the next hearing, Pais said, “Not a single witness says, ‘should result in spilling of the blood of policemen.'”

Another passage reads, “The ease and poise at which Umar Khalid was navigating both the ideologies, indicate that his position in the overall power matrix was very very close to the very top.”

“Who is the very top? I don’t know. How am I close to the top. I don’t know. Does anybody say I’m close to the top? I don’t think so. What is the power matrix? God knows. Do I have ease and poise? No witness says so. Do I navigate two ideologies? No witness says so,” said Pais.

The next bail hearing for Khalid is scheduled for 6 September.

READ: A Court Judgment For The Country And The Future, Says Asif Iqbal Tanha After Release From Tihar