UAPA accused and former JNU student Umar Khalid and his counsels moved court on 4 January to raise concerns of how certain sections of the media started a 'vicious media campaign' against Khalid. They have flagged how sections of the media continue to report from the supplementary charge sheet under FIR 101, being investigated by Delhi Police Crime Branch, when the accused themselves are yet to be supplied with a copy by court.
While the charge sheet was filed by the investigating officer on 26 December, the lawyers of the accused have not got a copy till 4 January, while the media has gone on to report several controversial aspects. This includes allegations of how Khalid has admitted his role in fuelling the Delhi riots in disclosure statements attached to the charge sheet.
The Quint has been tracking the aftermath of the communal violence of February 2020 in Delhi and was present at the 4 January hearing as well.
Reacting to the news reports, Umar Khalid told court:
"I am saying with absolute dismay that this pattern of media reporting on the charge sheet before the accused get a copy of it, is prejudicial to the trial. Please ask the prosecution and the investigating officer how is it that the media is getting a copy of the charge sheet before the accused is. The media says that in my confessional statements (disclosure statements) I have admitted to my role in the riots, how does that make sense when I gave it in writing that I had not signed any statement while in police custody on 4 October. I am well aware that these confessional statements are not admissible in court, but there is an obvious pattern of selected disclosure statements being leaked, so keeping that in mind I request you ask the Investigating Officer how this is being leaked again and again. This is affecting my right to a free and fair trial."
Appearing for Khalid were advocates Trideep Pais, Sanya Kumar and Rakshanda Deka. Pais told the court, "I submitted to the learned duty magistrate that immediately upon the charge sheet being filed, we have experienced that a vicious media campaign starts. Immediately after the charge sheet the media started saying that Umar Khalid had admitted to the riots, to mobilising people, to bring in women as a front, arranged guns etc. However, when you read the same charge sheet you will know that the accused they talk of was not even present in Delhi." Pais added how the reportage by the media has been brazen and devoid of the use of the term 'alleged'.
Umar also said, "I am repeating this, I have already told the court I did not sign any statement. These attempts show that the prosecution is themselves not confident of the evidence against me and want to start a media trial."
The application, which was submitted on 3 January to Chief Metropolitan Magistrate Dinesh Kumar's court, was brought up during the hearing on 4 January. The matter has been listed for 5 January after 2:00 pm. "I can not give an order on this today. The application has been listed for tomorrow at 2:00 pm," Chief Metropolitan Magistrate, of Karkardooma Courts in North East District, Dinesh Kumar said.
Second Time Umar Khalid Moving Court Against 'Media Trial'
This is the second time Umar's lawyers are moving court for the same concern. The last time this happened was on 28 November when they moved court under FIR 59 where the supplementary charge sheet, that outlined the alleged role of Khalid, was reported on by several sections of the media. Unable to respond to the allegations by the Delhi Police, in the absence of the charge sheet, his counsels told the court on that he was being subjected to a media trial.
The application moved by his counsels then read: “In several instances, this access to the chargesheet has been used to unfairly target the Applicant/Accused and run a vilification campaign against him, at a time, where in addition to being behind bars and hence, not in a position to issue clarifications or guard himself against unfair publicity, he does not even have access to the very chargesheet to which he is entitled by law.”
While the court had set the date for the accused to get the charge sheet on 2 December, based on the counsels application they were provided a soft copy of the charge sheet earlier than scheduled, on 28 November.
In the current reporting on the supplementary charge sheet under FIR 101, Delhi Police has alleged that Umar has made various damning admissions in disclosure statements.
While the police has made their case, which will be adjudicated on and argued against during trial, it is important to understand that under Section 25 of the Evidence Act, disclosure statements, which are taken under Section 161 of CrPC, hold zero value until they lead to recovery of evidence. These are statements that are made to the police and not in front of a magistrate, which are made under Section 164 of CrPC and hold during the trial.
Criminal lawyer, Satish Tamta explained that disclosure statements are recorded under Section 25 of the Evidence Act. "Any disclosure made by an accused before the police officer is inadmissable in court." Speaking about the exception in the case, he says, "The only time a disclosure statement will be treated as admissible is if it leads to the discovery of evidence in trial, for example the murder weapon. Once it leads to evidence, the disclosure becomes relevant. However, again, it will only be those specific statements that lead to discovery of evidence that would be treated as admissible and not the entire statement."
What is FIR 101?
Other than being arrested under FIR 59, the conspiracy FIR where the anti-terror law UAPA has been invoked, Khalid was arrested under FIR 101 on 1 October. This is the second case that has been registered against him from the Delhi communal violence of February 2020. While FIR 59 looks at the large scale conspiracy, FIR 101 looks at the violence that transpired in Khajuri Khas area of northeast Delhi. The case was registered on 25 February 2020 and is being investigated by Crime Branch.
The charge sheet primarily focuses on the alleged involvement of former AAP councillor Tahir Hussain. However, it makes repeated mentions of Khalid as well. The main charge sheet in the case reads: “He (Tahir Hussain) was found connected to Khalid Saifi and Khalid who are part of a larger group of persons who were organising riots and protests in Delhi.”
The various sections of the FIR are: Section 109 (punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment), 114 (abettor present when offence is committed), 147 (rioting), 148 (rioting, armed with deadly weapon), 149 (unlawful assembly), 186 (obstructing public servant in discharge of public functions), 353 (assault or criminal force to deter public servant from discharge of his duty), 395 (punishment for dacoity), 427 (mischief causing damage to the amount of fifty rupees), 435 (mischief by fire or explosive substance with intent to cause damage to amount of one hundred or ten rupees), 436 (mischief by fire or explosive substance with intent to destroy house, etc.), 452 (house-trespass after preparation for hurt, assault or wrongful restraint), 454 (lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence etc), 505 (statements conducing to public mischief ), 120B (criminal conspiracy), 34 (common intention) of the Indian Penal Code and Section 3 and 4 Prevention of Damage to Public Property Act as well as 25/27 Arms Act.