Supreme Court denies bail to Umar Khalid and Sharjeel Imam, gives it to 5 others

New Delhi: Observing that the material on record discloses a prima facie case against the duo, the Supreme Court on Monday rejected bail pleas of Umar Khalid and Sharjeel Imam, booked for their alleged involvement in the Delhi riots larger conspiracy case.

The SC, however, granted bail to some of the co-accused: Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohd Saleem Khan and Shadab Ahmed. The court clarified that Khalid and Imam can move for bail again on completion of examination of protected witnesses or completion of one year from Monday's order.

A bench of justices Aravind Kumar and NV Anjaria ruled that the bail plea of each accused needs to be examined individually since the seven accused were not on equal footing as regards culpability. The bench ruled that all the accused do not stand on the same footing as the roles attributed to them are different. Treating all the accused identically would risk pretrial detention, the SC added.

The bench held that Khalid and Imam's cases stand on a "qualitatively different footing as compared to other accused". And that the material on record showed a prima facie case against the duo under the Unlawful Activities (Prevention) Act, 1967. The bench ruled that in prosecutions under UAPA, delay in trial does not operate as a "trump card" which automatically displaces statutory safeguards. The top court said the judicial enquiry in such cases must be "accused-specific".


Roles of Khalid and Imam architectural: Apex Court

The bench held that roles of Khalid and Imam were not episodic but architectural. It added while the allegations against Khalid and Imam indicate a "central and directive role" in "conceptualising, planning and coordinating" the alleged larger conspiracy behind the riots, the roles of co-accused Gulfisha, Haider and others are merely subsidiary or facilitative in nature.

The bench said delay in trial can serve as a trigger for judicial scrutiny even in cases involving offences under UAPA, like the instant one. Right to liberty under Article 21 of the Constitution requires the state to justify prolonged pre-trial custody, the bench said. It added that while bail in UAPA cases is not given as a matter of routine, the law does not mandate denial of bail as default and does not exclude the court's jurisdiction to allow bail.

The bench ruled that the court has to undertake a structured enquiry as to whether the prosecution material, if accepted, constitutes a prima facie case and whether the specific role attributed to the accused crosses the statutory threshold.

The bench ruled that the use of the phrase "by any other means of whatever nature" in section 15 of UAPA indicates that terrorist acts are not confined to conventional forms of violence only.

"Apart from death or destruction of property, the provision expressly encompasses acts which disrupt supplies or services essential to the life of the community, as well as acts which threaten the economic security of the nation. This reflects Parliament's recognition that threats to sovereignty and security may arise through conduct that destabilises civic life or societal functioning, even in the absence of immediate physical violence."

"UAPA as a special statute represents a legislative judgement as to the conditions on which bail may be granted in pretrial stage. Delay serves as a trigger for heightened judicial scrutiny. The discussion has been confined to delay and prolonged incarceration. UAPA offences are rarely confined to isolated acts. The statutory scheme reflects this understanding," the court added.

The top court added that the speeches attributed to Khalid and Imam seemingly fell under the statutory conception of threat to the security of the state under section 15.

The riots in Delhi took place in February 2020 following clashes over the then-proposed Citizenship Amendment Act (CAA). The riots caused the death of 53 individuals and injured hundreds of others.