Sr. Adv. Trideep Pais at Delhi HC: Inconsistent Testimony Used to Charge Umar Khalid

Witness statement unreliable, Sessions Court Judge erred in denying bail to Mr. Khalid, claims Sr. Adv. Trideep Pais.

On May 24th, 2022, Senior Advocate Trideep Pais continued his defence of Umar Khalid in the ongoing bail proceedings at the Delhi High Court. Mr. Pais appeared before a Bench comprising Justices Siddharth Mridul and Rajnish Bhatnagar. 

Mr. Khalid is currently charged with several criminal offences as well as under the Unlawful Activities (Prevention) Act, 1967 (UAPA) for his alleged involvement in the 2020 Delhi riots. 

A Delhi Sessions Court previously denied his bail application on March 24th, 2022. In the previous hearing on May 23rd, Mr. Pais argued that charge sheets filed by the Delhi Police mischaracterised Mr. Khalid’s activities in the run-up to the riots as ‘terrorist’ acts.  

In today’s proceedings, two notable claims emerged. First, the Sessions Court Judge had erred in denying Mr. Khalid bail in March 2022. Second, the testimony of a protected witness in the charge sheet was relied on to deny Mr. Khalid bail and advance the prosecution’s argument that he conspired to riot in 2020. This is despite the fact that the statement was inconsistent and not corroborated by any kind of evidence. Mr. Pais finished addressing 11 out of 17 instances that he claimed were ‘inaccuracies’ in the charge sheet later in the day’s hearings.

Senior Adv. Pais: Sessions Court’s Rationale for Denying Bail is Erroneous

Mr. Pais argued that the test for granting bail laid down in National Investigative Agency v Zahoor Ahmad Shah Watali (2019) was relevant for cases involving alleged terrorist activities. In Watali, the SC dictated that the merits of the allegations against the accused are not to be factored while considering the grant of bail. However, it added that the Court must look into whether the allegations were ‘prima facie true’. 

Mr. Pais claimed that the Special Judge of the Delhi Sessions Court had erred by not applying the Watali test to Mr. Khalid’s bail application. Instead, he relied solely on a statement made by the protected witness ‘Bond’ in the charge sheet filed by the Delhi Police. Later on in the hearing, Mr. Pais went on to describe the inconsistencies of the statement.

The Watali test further dictates that in order to refuse bail, such a witness statement must be considered by a Judge to be ‘good and sufficient’—it must establish at face value a given fact or chain of facts constituting the alleged offence’. The same interpretation for evaluating the veracity of a witness statement is applicable to the UAPA. This is a lower standard for assessing bail applications, in comparison to similarly stringent laws such as the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Narcotic Drugs and Psychotropic Substances Act, 1985.

Mr. Pais also relied on the Supreme Court’s decision in Ranjitsing Brahmajeetsing Sharma v State of Maharashtra (2005). When deciding whether to grant bail, the duty of the Court is not to weigh the evidence presented before it. Rather, it is to consider the broad probability of whether the accused may ultimately be convicted.

Mr. Pais concluded that the reasoning of the Special Judge to admit the statement—‘if there is a statement, I will consider it’—was erroneous. The duty of the Judge when considering bail was not to merely accept the statement, but rather to base the decision on the likelihood of it being true.

Senior Adv. Pais: Allegations Made in the Charge Sheet Are Inconsistent

Mr. Pais stated that the allegations made by the prosecution displayed the ‘flowery imagination of a scriptwriter’. The prosecution initially claimed that Umar Khalid had given a speech inciting violence before a crowd of 700 people on February 17th 2020 in Maharashtra’s Amravati. This argument was based on a witness statement by ‘Bond’ (pseudonym) in the charge sheet—which Mr. Pais challenged on multiple grounds.

Bond’s statement was recorded a mere month prior to Mr. Khalid’s arrest in September 2020. The statement was not corroborated by any of the 700 other witnesses present when the speech was delivered. Mr. Pais further argued that it was not connected in any way to the violence that had erupted during the 2020 Delhi riots—the event Mr. Khalid is allegedly connected with. 

Highlighting the other instances mentioned in the charge sheet, Mr. Pais further contended that Bond’s statement was based on hearsay and made up to falsely implicate Mr. Khalid in the violence that transpired in Delhi. Additionally, no money trail or direction to instigate violence was mentioned in the statement, nor was there any other corroborating evidence to prove the claims against Mr. Khalid. 

Mr. Pais emphasised that the admissibility of the lone witness’s statement was not the important question in this case, but rather its reliability. Speaking on behalf of Mr. Khalid, he proclaimed ‘I have to bear the brunt of two years of imprisonment because you have made a statement’.

Senior Adv. Pais: Claims Made in the Charge Sheet Unreliable

The initial allegation against Mr. Khalid was that he had delivered an inciting speech. However, the prosecution changed its tune in the supplementary charge sheet. It claimed that Mr. Khalid was a ‘silent whisper’ in the 2020 riots, who bore the ‘unmistakable hallmark of a maturing Umar Khalid learning from 2016’. In 2016, Mr. Khalid was charged with sedition for chanting ‘anti national’ slogans at a student protest in his alma mater, Jawaharlal Nehru University.

Mr. Pais questioned the prosecution’s reliance on a WhatsApp group—’Delhi Protest Support Group’—that Mr. Khalid was a part of. The group was cited in the charge sheet as the main tool used to incite violence. It comprised other activists, students, and individuals, and was used to coordinate protests against the Citizenship Amendment Act, 2020; opposition to these protests partially fuelled the riots. The transcripts of the chats on the group covered thousands of pages—but contained only four benign messages from Mr. Khalid. Mr. Pais also questioned allegations of Mr. Khalid meeting with other ‘co-conspirators’ in the riots, collecting protest funds, and planning to make protests women-centric to avoid clashes with the police. Mr. Pais argued that no evidence was used in the charge sheet to corroborate these allegations.

Mr. Pais will present his remaining arguments on May 25th, 2022.

Click here for a timeline of Mr. Khalid’s bail appeals at the Delhi High Court.