Umar Khalid and Sharjeel Imam, the bench said, stand on a “qualitatively different footing as compared to other accused.” They can only move for bail after a year or once the examination of protected witnesses is complete.
The Supreme Court has rejected bail for Umar Khalid and Sharjeel Imam, both incarcerated for over five years in connection with what the Delhi Police believes is the “larger conspiracy” behind the Delhi communal violence of 2020, while granting bail to Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Shadab Ahmed, and Mohammad Saleem Khan.
The Supreme Court claimed, according to Bar and Bench, that “to disregard the distinction between the central roles played by some accused and the facilitatory role played by other accused would itself result in arbitrariness.”
The apex court directed the trial court to ensure that examination of protected witnesses is carried forward without any delay and that trial is not unnecessarily prolonged.
A bench of Justices Aravind Kumar and N.V. Anjaria noted that the order is “a bit lengthy” before entering into the background of the case.
“The hierarchy of participation requires the court to assess each application individually,” it said, according to Bar and Bench.
Umar Khalid and Sharjeel Imam, the bench said, stand on a qualitatively different footing as compared to other accused.
“This court is satisfied that the prosecution material disclosed a prima facie allegation against the appellants Umar Khalid and Sharjeel Imam. The statutory threshold stands attracted qua these appellants. This stage of proceedings do not justify their enlargement on bail,” the bench said.
The court said that Khalid and Imam can move a bail application on completion of examination of protected witnesses or on the completion of one year from this order.
Khalid was arrested in September 2020. Imam was in jail during the riots.
Fifty-three people died, hundreds were injured, and there were extensive damage to property and business during the violence in Delhi in February 2020. However, in the last five years, the police has pursued a “larger conspiracy” case targeting student activists and local politicians who had been participants or organisers in anti-CAA protests – a move that has been globally decried as partisan.
A group of US lawmakers had last week expressed their concern over Khalid’s prolonged pre-trial detention and wrote to Vinay Mohan Kwatra, the Indian Ambassador in Washington.
Article 21
Justice Kumar noted, according to LiveLaw‘s commentary on X, that continued incarceration affects the constitutional guarantee under Article 21. He said that the right to speedy trial is recognised as an important facet of right to Article 21, and that a delay serves as trigger of heightened scrutiny. Here, he said, gravity and statutory character, role attributed, strength of the prima facie case and extent of continued incarceration become demonstrably visible and have to be considered.
Justice Kumar also spoke on the statutory scheme of the UAPA and that it extends culpability of preparatory parts before violence is committed. While noting that 43D(5) of the UAPA is a conscious departure from the regular bail statute, he said it does not exclude judicial scrutiny.
The bench said that courts should evaluate whether a case discloses prima facie offence, whether the role attributed reveals real nexus and whether the statutory threshold is crossed.
According to Bar and Bench, the bench said that Article 21 “occupies a central space in the constitutional scheme” and that pre-trial incarceration “cannot be assumed to have the character of punishment.”
It added that the deprivation of liberty will not be arbitrary. “The UAPA as a special statute represents a legislative judgement as to the conditions on which bail may be granted in pre-trial stage,” the bench said.
Noting that it is “necessary to examine each appeal independently,” the bench said that the record discloses that “all the appellants do not stand on equal footing as regards culpability.”
(This article first appeared in The Wire)
Also Read: Fresh Air, Home-Cooked Meal…Khalid Enjoys a Semblance of Life During Interim Bail https://www.vibesofindia.com/fresh-air-home-cooked-mealkhalid-enjoys-a-semblance-of-life-during-interim-bail/
