In a major development, the Delhi High Court on Friday, 23 October, granted bail to Faizan Khan, one of those accused of being part of the conspiracy behind the Delhi riots in the Delhi Police Special Cell’s controversial FIR 59.
Despite Faizan being booked under the stringent Unlawful Activities (Prevention) Act – the UAPA – Justice Suresh Kumar Kait observed that the embargo against granting bail in cases under the draconian law was not attracted in his case, as the police had failed to provide any material to back up their accusations that he had committed terrorism-related offences.
“It is pertinent to mention here that the onerous conditions/embargo under section 43D (5) of the UAPA, 1967 will not be applicable in the present case qua the petitioner herein as per the material on record and the investigating agency’s owns status report, which does not disclose the commission of the offences under the UAPA, 1967, except bald statements of the witnesses.”Justice Kait’s bail order dated 23 October
The order had been reserved on 7 October and was pronounced on the 23rd.
WHAT HAVE THE POLICE ACCUSED FAIZAN KHAN OF?
Faizan was arrested by the Delhi Police on 29 July, and alleged by the prosecution to have been part of the conspiracy hatched by Umar Khalid and his associates to organise the riots in north east Delhi during the visit of US President Donald Trump in February 2020.
He was found to have supplied and activated the SIM card for mobile number 925448022, registered fraudulently in the name of one Abdul Jabbar, but actually used by the the Jamia Coordination Committee (JCC) headed by Jamia student Safoora Zargar. Zargar and other members of the JCC are accused of being part of the conspiracy behind the riots.
According to the Delhi Police, Faizan disclosed to them that Jamia student Asif Iqbal Tanha, another accused in the case, had visited the shop where he worked as a promoter for Airtel mobile connections and “demanded a SIM card on a fake ID.”
Police witness Gaurav Kumar Diwakar, who promoted JIO connections at the same shop, made a statement to this effect as well, as did protected witness ‘ROBOT’, who said Tanha had come to the shop in his presence.
Additional Solicitor General SV Raju argued that based on this evidence, Faizan Khan had issued the SIM card to Asif Iqbal Tanha in furtherance of criminal conspiracy, and that “Since inception [Faizan Khan] was well aware about the conspiracy of riots.” As a result, they claimed he had committed a terrorism-related offence under the UAPA, and hence could not be granted bail.
WHY DID THE DELHI HIGH COURT GRANT FAIZAN KHAN BAIL?
Faizan Khan was represented by senior advocate Salman Khurshid. He argued that the investigating agency had wrongly invoked the UAPA against Faizan as there was no allegation of an actual terrorist act against his client, who is just a poor salesman working at a shop in Okhla.
Khurshid termed the invocation of the UAPA “disproportionate” and a “gross abuse” as the police had produced no “material that even remotely shows that the petitioner funded any terror activity.”
Justice Kait referred to the Supreme Court’s 1994 decision in Hitendra Vishnu Thakur vs State of Maharashtra to say that in such cases, the court should “always consider carefully the material available on record and apply its mind to see whether the provisions” of the special law being invoked against a person “are even prima facie attracted.”
He found that from the material on record and the submissions of the ASG for the State, Faizan Khan was no part of any of the WhatsApp groups involved in coordinating or organising the protests against the Citizenship Amendment Act 2019, which the Delhi Police claim to be where the conspiracy behind the Delhi riots was hatched. He had sold the SIM card to Asif Iqbal Tanha in December 2019, whereas the violence took place from 23-25 February.
“There is no proximate nexus between the aforesaid alleged incidents nor is it alleged that the said SIM card was provided, on the pretext or with the intention/objective, to be utilized for organizing protests, etc,” the judge said in the order.
Justice Kait also referred to another decision of the Supreme Court in Kartar Singh vs State of Punjab to say that when making an accusation that a person had knowledge of a conspiracy to commit offences like this and is therefore part of the conspiracy, it has to be seen if they have “actual knowledge or reason to believe” of such conspiracy.
To invoke the UAPA against Faizan Khan, Delhi Police, therefore, would have to demonstrate that he had “actual knowledge” that the SIM card he provided would be used for organising the protests that sparked the riots. However, the judge found that:
“There is no proof on record such as CCTV footage, video or chats of petitioner with any of the group except the allegation that he provided SIM on fake ID in December 2019 and taken a small amount of Rs.200/- for the same. It is not the case of the prosecution that he provided many SIMs and continued to do the same.”
The high court also noted that Faizan had cooperated with the police, and had not fled during the long period between registration of the conspiracy FIR on 6 March, and his arrest on 29 July.
Taking all of this into consideration, he held that the bar against granting bail to someone accused of terror offences under Section 43D(5) of the UAPA was not attracted. Khan is to be released on bail on the furnishing of a personal bond for Rs 25,000 and has been directed to not directly or indirectly influence any witness or tamper with any evidence.
Justice Kait has also noted that the observations in this order relate to the question of bail only, ie, they are prima facie observations, and so the trial court should not be influenced by what has been said here when the case actually proceeds to trial.