In Umar Khalid's ongoing bail hearing under FIR 59, where UAPA was invoked, senior advocate Trideep Pais said that the judiciary had been disabled from acting due to the provision of UAPA.
"There is legislature, executive and then you; in this equation, who has been prevented from doing their job. The distrust of the judiciary is PMLA, UAPA, etc. So, your hands are tied. The third and most important wing of the government has been disabled from acting. In a fair world, this FIR should not have been registered," Pais said in the matter heard on Monday, 23 August, at Delhi's Karkardooma court.
The Quint's story on exposing a loophole in the police's conspiracy theory was also referred to during the arguments. It can be read here.
Those present for the hearing were Khalid's counsels – Trideep Pais, Sanya Kumar, and Rakshanda Deka – Additional Sessions Judge Amitabh Rawat and Public Prosecutor Amit Mahajan.
FIR 59 Drafted to Selectively Target People: Umar's Lawyer
"As many as 750 FIRs were registered between 23 and 25 February 2020. I am not named in a single FIR and arrested later in one, for which I (Umar) am on bail. FIR 59, which was unnecessary, was drafted and filed to target people selectively based on their importance to the opposition to the CAA," Pais said.
"You did not have a case on 6 March (when FIR 59 was registered), you fabricated the case after April. There are 750 FIRs, which have been registered under various sections of rioting, murder etc. No quarrel there. Please investigate them. My submission is that when those FIRs were filed, there was an actual crime. 6 March 2020 FIR has no such commission of crime. The FIR was framed in such a broad manner, where you could get statements under the FIR and implicate anyone," he explained.
He says that all the statements that have been documented under this FIR are an afterthought. He said:
"From April 2020 to January 2021, statements are cooked up. This is my basis of saying that FIR 59 should not have been registered at all. No one should have been arrested under it."Umar Khalid's lawyer Trideep Pais.
Trideep Pais on the Chronology of FIR 59
After counsel Sanya Kumar read the complaint in FIR 59, Pais went on to state, the police was essentially saying that the "manner in which the protests against the CAA, 2019, were being carried out was by resorting to chakka jams (road blockades). Those chakka jams were a result of provocative speeches in different places. It was planned in a way, in which chakka jams would result in violence."
The 6 March 2020 FIR was registered with bailable sections and on 15 March 2020, after an accused, Danish got bail, non-bailable sections were added, he says.
"There is no iota of doubt that the 750 FIRs (already registered) are dealing with all the sections added on 6 March and 15 March. Now we will show how this FIR is a hollow FIR," he says.
The FIR complaint mentions that the tip off of it being a conspiracy came from a secret informer. "You say you have a secret informer, who also does not show up in your charge sheet," Pais said.
Then when Jamia Millia Islamia student Safoora Zargar applies for bail, UAPA is added, Pais says, adding that this was why her bail application was rejected.
"This is not worth the paper the charge sheet is written on," Pais said.
Burden Not on Me, But on Prosecution: Trideep Pais
Explaining the grounds for bail under UAPA, Pais read out Section 43D (5) which states:
"Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."
Pais told the judge, "You have been given the solemn duty to peruse the case diaries, etc, to come to the conclusion that the accusations against me are prima facie true. The burden is not on me. The burden is on the prosecution to show they have a reasonable case against me."
Only Speech in Evidence Against Umar Khalid: What He Said in Amravati
Pais refers to the speech made by Umar Khaid in Amravati on 17 February 2020. This is the only electronic evidence in speech that the police claims to have against Umar Khalid.
Breaking the context of the speech down, Pais explains how the two organisations that the Police had relied on never had their own raw footage of the speech. Both of them responded to the police's notice by saying that the speech was taken from BJP leader Amit Malviya's Twitter handle.
More problematically he says that, News18 report does not include the following line.
अगर हिंदुस्तान के हुक्मरान देश को बांटना चाहते है, तोह हिंदुस्तान की अवाम देश को जोड़ने के लिए तैयार है|
Translation: If the rulers of India want to divide the country, the people of India are ready to unite the country.
"I've been framed by the press," Pais said.
Rawat then asks Pais, "So, the video was broadcast without verifying?"
"Of course," Pais responds.
Pais then says that when the FIR was registered, the only evidence the police had against Umar was a YouTube video, which was copied from a tweet. The journalist did not even go there. It is copied from the Tweet of a politician. It is the death of journalism," he said.
He goes on to say that the police obtained the full speech on 6 July.
The entire speech is then played in court.
Not only does Pais highlight those statements that were left out by the police, but also says that other things were said by Umar.
Including:
“We won’t respond to violence with violence. We won’t respond to hate with hate. If they spread hate, we will respond to it with love. If they thrash us with lathis, we keep holding the Tricolour. If they fire bullets, then we will hold the Constitution. If they jail us, we will go to jail singing, “Saare Jahaan Se Achchha Hindustan Hamara”.
Pais then said, "This is the best evidence they have against me (Umar) and they did not produce it. They have one speech against me and they do not produce it. I produced it in court myself."
FIR 101: A conspiracy
The loophole regarding when the alleged conspiracy was hatched was revealed by The Quint's exclusive reportage. "This came out in The Quint on 12 June," Pais said.
The theory is about a meeting that allegedly took place on January 8 between UAPA accused Khalid Saifi, Umar Khalid, and Tahir Hussain. The police had claimed in another charge sheet that they met at Shaheen Bagh to plan the protest knowing that erstwhile US President Donald Trump will visit India in February.
Pais relied on our report, along with a statement by the MEA, that the news about Trump's visit was announced on 11 February 2020, to show that there was no way that Umar would have known it prior to that.
Pais refers to how a witness gave a statement on 21 May where he does not speak of the meeting. "If on May 21 you don't know the theory of planning meeting, how did you file the charge sheet on June 2? Then you needed a statement. So, you have a supplementary charge sheet. On September 27, the same witness speaks of the January 8 meeting," Pais said.
The same witness, however, makes different statements under FIR 59. "It's a same tailor who makes different clothes for different people. It's like say this in FIR 59. A statement is a statement; you can't tailor-make it here and there. He's contradicting himself in the statements," he said.
"I repeat, there is no accused who should be arraigned in this FIR. This FIR is a cooked up theory and in the starting point they had nothing," he said.
Pais said that this theory was dropped in the charge sheet after the loophole was found. "So, you shamelessly gave up this theory in the supplementary chargesheet. It's naked on the face of it that all of it was fabricated," he said.
Umar has two cases registered against him. After the arguments that lasted one day, he was granted bail for FIR 101 on 15 April earlier this year.
While granting him bail, the order read:
The applicant has been roped in the matter merely on the basis of his own disclosure statement and the disclosure statement(s) of co-accused Tahir Hussain and Khalid Saifi. It is argued that no recovery of any sort has been effected from the applicant in the matter.
Pais will continue his arguments on 3 September.
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