You are asking us to conduct mini-trial during bail proceedings: Delhi HC to Umar Khalid

As Umar Khalid, the accused in Delhi Police’s alleged larger conspiracy case in connection with the Northeast Delhi riots, Wednesday questioned the credibility of the prosecution witness against him, the High Court said that under the UAPA anti-terror law, it has to only look at the material on the record without testing its veracity during the bail proceedings.

“You are asking us to conduct a mini-trial and determine whether the three (Khalid and co-accused Khalid Saifi and Tahir Hussain) met. The way we see it, (the judgment) Zahoor Ahmad Shah Watali says that the court at the stage of bail can only look at the material and evidence collated by the prosecution as stated in the chargesheet, without questioning the veracity thereof. It can be rebutted only at the stage of trial,” said the division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar.

Senior advocate Trideep Pais, representing Khalid, argued that the Watali judgment on UAPA also states that the evidence on reading has to be “good and sufficient on its face” to constitute the crime and only then can it be termed prima facie. “Otherwise nobody will get bail ever,” he added.

The court said that it cannot compare statements under CrPC sections 161 and 164 at this stage as it will prejudice the prosecution during the trial. However, Pais argued that the court can look at them if they fly in the face of each other. “That you are not able to support by reference to Zahoor Ahmad Watali,” observed the court.

Pais argued that the chargesheet on its own should make out the offence it seeks to frame Khalid for, which it does not. However, the court said that at this stage, it is not required to test the veracity of the statements. “What we have discerned from all of this so far is that the three of you met. Why are they saying that the three of you met? Because they are trying to establish a case under Section 18 of the UAPA, that there was a conspiracy,” it added.

Khalid’s counsel earlier argued that the witness statements are at variance. He also contended that when the chargesheet speaks of such detail but the sole witness the prosecution relies on has nothing to say for it, the court should not take that into consideration at all.

However, Justice Mridul said the court disagrees with the submission. “We will look at the statement for its true import and scope. What the statement says, it says. What it doesn’t say, it doesn’t. This is not the stage and Watali does not support your argument that we can dissect it any further,” the judge added.

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Pais submitted that along with the statements, the call detail record and tower location filed by the prosecution show that the three accused including Khalid were not at the same spot, same time at all on that day. “The prosecution has tried to match the cell tower details and tried to see if different accused were in the same place and alleged that they met for a conspiracy. There are no statements of eyewitnesses and recoveries. When we analyse the call records, they were not even at the same place at the same time,” he submitted further.

The court Wednesday listed the bail appeal for further hearing on Monday. The prosecution is likely to start his arguments next week.

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