Sharjeel Imam Moves Supreme Court for Bail in Delhi Riots UAPA Case After High Court Denial

Sharjeel Imam has approached the Supreme Court for bail in FIR 59 of 2020, the 2020 North East Delhi riots larger conspiracy case. A Division Bench of the Delhi High Court comprising Justice Prathiba M. Singh and Justice Dinesh Bhatt refused him bail on September 30. The plea says the prosecution is yet to examine protected witnesses and the one-year embargo fixed by the Supreme Court is about to expire.

That embargo stems from January 5. On that day a bench comprising Justice Aravind Kumar and Justice N.V. Anjaria denied bail to Imam and former JNU scholar Umar Khalid. It granted bail to five other accused, including Gulfisha Fatima. The bench called Imam and Khalid "ideological drivers" of the alleged larger conspiracy and distinguished their roles from the other accused to grant relief.

The January 5 order said Imam and Khalid could approach the court on completion of examination of protected witnesses or on expiry of one year from the order, "whichever is earlier". Imam's plea invokes that condition to seek bail in Supreme Court now.

The chargesheet was filed on September 25, 2020. It names 18 accused facing trial and cites more than 900 prosecution witnesses, including 47 protected witnesses. The plea states that despite 6 years and 9 months as an undertrial, the prosecution has failed to examine even one witness.

He closed his arguments on charge on January 8, three days after the Supreme Court judgment denying him bail. Arguments on charge on all sides were concluded on July 13, the plea states.

Charge Order Deferred Over Kalita Petition

On July 22, the respondent NIA told the Special Court that the Supreme Court has stayed an order permitting co-accused Devangana Kalita to inspect unrelied documents collected by the Delhi Police, the plea states. Judgment in Kalita's petition was reserved on September 1 and is yet to be pronounced.

Till that petition is decided, the Special Court has deferred the order on charge. It said: "propriety demands that this court should wait until the disposal of the SLP before the Hon'ble Supreme Court or until it is allowed by the Hon'ble Supreme Court to pass the order." Charges are yet to be framed, the plea states.

The trial court had first rejected Imam's bail plea on July 4 on the ground that it cannot violate the conditions imposed by the Supreme Court. The High Court then denied bail on the ground that it cannot modify the Supreme Court's order.

According to the plea, since charges are yet to be framed and no witness has been examined, the "whichever is earlier" condition cannot be met within the outer limit fixed by the Supreme Court. The case is registered under offences under the Indian Penal Code, 1860 and the Unlawful Activities (Prevention) Act, 1967 and is probed by the Special Cell of Delhi Police.

A May 22 order by Justice Aravind Kumar referred to a larger bench the "perceived conflict" among different benches of the Supreme Court in interpretation of the K.A. Najeeb judgment, which held that a long period of incarceration can dilute the rigours of stringent bail provisions under the UAPA. The reference followed reservations expressed by a two-judge bench comprising Justice B.V. Nagarathna and Justice Ujjal Bhuyan in Syed Ifthikar Andrabi, which criticised the Gulfisha Fatima judgment for taking a narrow view on bail under the UAPA by diluting Najeeb.

In the same order, while granting interim bail for six months to co-accused Tasleem Ahmed and Khalid Saifi, the Court said: "Having said so, we cannot lose sight of the fact that the present appellants have undergone substantial incarceration; that the trial is not likely to end soon; that the appellants themselves have invoked the principle of calibrated constitutional discretion recognised in Gulfisha Fatima; and that the determination of the issues may consume further time. The appellants cannot be made to suffer continued incarceration merely because an important question of law has arisen for authoritative settlement. Without expressing any opinion on merits, and subject to stringent safeguards, we are inclined to grant interim bail to the appellants pending further orders." Imam has relied on those findings on prolonged incarceration and the unlikelihood of an early end to the trial to argue violation of speedy trial.

The Special Court is waiting for disposal of the SLP in Kalita's case before passing the order on charge.