Without mincing any words whatsoever, the Delhi High Court in a most recent, robust, refreshing, rational and remarkable judgment titled Umar Khalid vs State of National Capital Territory of Delhi in Neutral Citation No: 2022/DHC/004325 and CRL.A. 173/2022 that was reserved on September 9, 2022 and then finally pronounced on October 18, 2022 has observed explicitly that the attack on police personnel during the 2020 North East Delhi riots by women protestors in front only followed by other ordinary people and engulfing the area into a riot is the epitome of a pre-meditated plan and would prima facie be covered by the definition of ‘terrorist act’ under the Unlawful Activities (Prevention) Act.

While denying bail to student activist Umar Khalid in the Delhi riots larger conspiracy case, the Division Bench comprising of Hon’ble Mr Justice Siddharth Mridul and Hon’ble Mr Justice Raj Rajnish Bhatnagar said if the chargesheet is taken at face value, there appears to have been a premeditated conspiracy for causing disruptive chakka-jam and pre-planned protests at different planned sites in Delhi.

The Delhi High Court also clearly pointed out that:
Acts which threaten the unity and integrity of India and cause friction in communal harmony and creates terror in any section of the people, by disturbing the social fabric is also a priori a terrorist act. My best friend Sageer Khan also in Sagar in Madhya Pradesh in 1993 voiced similar views like the Delhi High Court while interacting with me on the riots after the Babri demolition in Ayodhya on 6 December 1992! No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Rajnish Bhatnagar for a Division Bench of the Delhi High Court comprising of Hon’ble Mr Justice Siddharth Mridul and himself first and foremost puts forth in para 1 that:
The Appellant has preferred the present Appeal under Section 21(4) of the National Investigation Agency Act, 2008 r/w Section 43-D(5) of the Unlawful Activities Prevention Act, 1967, seeking setting aside of impugned order dated 24.03.2022 passed by the Court of Sh. Amitabh Rawat, Ld. Additional Sessions Judge-03, Karkardooma District court (Shahdara district), Delhi, whereby the Appellant’s Application for grant of Regular Bail was dismissed in case FIR No. 59/2020, PS. Crime Branch (investigated by the special cell) registered under section 120B read with 124A, 302, 207, 353, 186, 212, 395, 427, 435, 436, 452, 454, 109, 114, 147, 148, 149, 153A, 34 IPC, Sections 3 and 4 of the Prevention of Damage to Public Property Act (PDPP) Act, 1984, Sections 25/27 Arms Act, 1959 and Sections 13, 16, 17, 18 of the Unlawful Activities (Prevention) Act 1967 (hereinafter, UAPA).

As things stand, the Division Bench then discloses in para 2 that:
By way of the impugned judgment dated 24.03.2022, the Ld. Trial Court returned a finding that there were reasonable grounds for believing that the accusation against the appellant were prima-facie true on the perusal of the charge-sheet and accompanying documents for the limited purpose of bail and as such the embargo created by Section 43D(5) of UAPA as well as section 437 of the Criminal procedure Code squarely applied for grant of bail to the appellant and thus, the prayer for grant of regular Bail was declined.

Quite naturally, the Division Bench then states in para 3 that:
It is this impugned order, which is subject matter of Appeal before this court, wherein the appellant besides praying for setting aside of the impugned order dated 24.03.2022 is also praying for release on regular Bail in the instant FIR No. 59/2020, PS. Crime Branch.

Background To The Case
While dwelling on the facts of the case, the Division Bench then mentions in para 4 that:
Briefly stated, the aforesaid FIR came to be registered by the Crime Branch on 06.03.2020, alleging that the riots which took place in North East Delhi between 23.02.2020 and 25.02.2020 were the result of a preplanned conspiracy between the Appellant along with his associates from different organizations, who have all planned and carried out the said conspiracy which culminated in the said Riots. It has been alleged that the appellant had made provocative speeches at different locations and made an appeal to people to come out and block the streets, during the visit of US President Donald Trump, so as to publicize, at an international level, that minorities were being targeted and discriminated against in India.

While continuing in a similar vein, the Division Bench then reveals in para 5 that:
Further, the Appellant and his associates also conspired to bring women and children onto the streets in several parts of Delhi with the intention of causing riots, pursuant to which, on 23.02.2020, women & children gathered under the Jaffrabad metro station to block roads with the object of inconveniencing people, escalating tensions and ultimately inciting riots. On the same day, children were taken out of some schools for minorities in a pre-planned fashion. Moreover, firearm, petrol bombs, acid bottles, stones with slingshots to pelt them etc. were gathered at several places such as Maujpur, Kardampuri, Jaffrabad, Chandbagh, Gokulpuri, Shiv Vihar and their neighbouring areas.

Still more, the Division Bench then states in para 6 that:
The said riots which ensued between 23.02.2020 and 25.02.2020, not only rocked Delhi but the entire country and almost 751 FIRs in relation to the said Riots was registered in different police stations of Shahdara and North East districts of Delhi, in which an estimated 53 people were killed (including one police official), besides causing damage to public property running into several crores and a sense of fear and panic prevailed in the mind of the general public during the said period and the scars still remain in the mind of the public at large.

As we see, the Division Bench then points out in para 7 that:
That the Appellant herein was arrested on 13.09.2020 by the Investigating agency, having joined after being called for investigation. The first charge-sheet came to be filed on 16.09.2020 against 15 accused persons. The Ld. Sessions Court, vide order dated 17.09.2020, took cognizance of all offences mentioned in the said charge-sheet against the said 15 accused persons, except Sections 124A/153A/109/120B which requires sanction from the State Government.

Furthermore, the Division Bench then very aptly observes in para 8 that, Thereafter, a supplementary charge-sheet was filed on 22.11.2020 against three accused persons including the present Appellant, who has been named as Accused No. 18. The Ld. Sessions Court took cognizance of all offences elaborated in the supplementary charge-sheet dated 22.11.2020 vide order dated 24.11.2020, except offences under Sections 124A, 153A, 109 and 120-B of the IPC which required sanction from the State Government. Further, a second supplementary charge-sheet was filed in the present FIR on 23.02.2021, pertaining primarily to technological evidence related to offences stated in the FIR in question. Vide order dated 02.03.2021, the Ld. Sessions Court took cognizance of the second supplementary charge-sheet. The said order also noted that sanction under Section 196, Cr.P.C. had also been received in relation to all 18 accused persons and consequently, cognizance was also taken of offences under Sections 124A, 153A, 109 and 120-B of the IPC.

In addition, the Division Bench then lays bare in para 9 that:
A third supplementary charge-sheet was filed in the present FIR on 02.03.2022, primarily related to CCTV footages of cameras of out-door enclosures; further evidences relating to conspiratorial meetings held on 22.02.2020 & 23.02.2020; result of Forensic voice examination report; evidence of disruption of essential services, Evidence & circumstances relating to speech by the Appellant at Amravati (Maharashtra), damage and destruction of property & loss of revenue etc.

Moving on, the Division Bench then envisages in para 10 that:
In the interregnum the Appellant filed an Application seeking Regular Bail before the Ld. Trial Court, which came to be dismissed vide the impugned order dated 24.03.2022, which is the subject matter of the present Appeal.

Conclusion
Most significantly, the Division Bench after listening to all sides and considering all the relevant material before it holds in para 62 that:
As per the charge-sheet as discussed above & the materials collated during investigation, if taken at face value, there appears to be a premeditated conspiracy for causing disruptive chakka-jam and preplanned protests at different planned sites in Delhi, which was engineered to escalate to confrontational chakka-jam and incitement to violence and culminate in riots in natural course on specific dates.

The protest planned was not a typical protest normal in political culture or democracy but one far more destructive and injurious geared towards extremely grave consequences. Thus, as per the pre-meditated plan there was an intentional blocking of roads to cause inconvenience and disruption of the essential services to the life of community residing in North-East Delhi, creating thereby panic and an alarming sense of insecurity. The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such pre-mediated plan and as such the same would prima facie be covered by the definition of ‘terrorist act’.

Most forthrightly, the Division Bench then propounds in para 63 that:
Further, as per precedents, terrorism is an act done with a view to disturb the even tempo of society, create a sense of fear in mind of a section of society. The argument of the appellant is objectively that although there was a sense of insecurity instilled in public by his speeches but he had nothing to do with it and referred to the charge-sheet to argue that there is no statement of any witnesses, which could be termed as inculpatory against him.

However, this court has to see whether the perpetrators individually or in connection with each other are responsible for it. As already mentioned above, different roles were ascribed to different people (accused) in carrying out the said conspiracy. Different protected witnesses have stated the role of the Appellant and other accused persons and about the open discussion on violence, riots, finance and weapons.

What cannot be glossed over is then stated by the Division Bench in para 64 that:
Further, the weapons used, the manner of attack and the resultant deaths destruction caused indicates that it was pre-planned. Acts which threaten the unity and integrity of India and cause friction in communal harmony and creates terror in any section of the people, by disturbing the social-fabric is also a priori a terrorist act.

To be sure, the Division Bench then points out in para 65 that:
The name of the appellant finds recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots. Admittedly, he was a member of the WhatsApp group of Muslim students of JNU. He participated in various meetings at Jantar Mantar, Jangpura Office, Shaheen Bagh, Seelampur, Jaffrabad and Indian Social Institute on various dates. He was a member of the DPSG group. He referred to the visit of the president of USA to India in his Amrawati Speech. The CDR analysis depicts that there had been a flurry of calls that happened post riots amongst the appellant and other co-accused.

The cumulative statement of the protected witnesses indicates the presence and active involvement of the appellant in the protests, engineered against the CAA/NRC. Admittedly these protests metamorphosed into violent riots in February 2020, which began by firstly choking public roads, then violently and designedly attacking policemen and random members of the public, whereat firearms, acid bottles, stones etc. were used, resulting in the admitted and sad loss of 53 precious lives and the destruction of property worth several Crores. These protests & riots prima-facie seem to be orchestrated at the conspiratorial meetings held from December, 2019 till February, 2020.

To state the ostensible, the Division Bench then directs in para 66 that:
As a natural and consequential corollary to the observations as mentioned herein above, the impugned order of the Ld. Session Judge dated 24.03.2022 does not warrant any interference by this Court and is sustained. As a sequel thereto, the Appeal is dismissed.

Adding more to it, the Division Bench then enunciates in para 67 that:
Further, on the in depth and considered perusal of the chargesheet, the accompanying documents and in view of the discussions herein above, only for the limited purpose of the present bail; this court expresses the inescapable conclusion that allegations against the Appellant are prima facie true and hence, the embargo created by Section 43D(5) of UAPA applies squarely with regard to the consideration of grant of bail to the Appellant. Thus, the Appellant’s application seeking regular bail is rejected.

Finally, the Division Bench then concludes by holding in para 68 that:
Nothing stated hereinabove shall tantamount to an expression of any opinion on the merits of the case.

All told, we need not strain our nerves to come to the inescapable conclusion which forms the bottom-line of this notable judgment also delivered by the Delhi High Court that the Delhi riots attack on police personnel by positioning women protesters in front and area engulfing in riots is epitome of premeditated plan. But let us not jump to any conclusion as the Court has not ruled into the merits of the case. So on this count we have to keep our fingers crossed till the case is finally decided on merits!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.