No Physical Evidence, Only Belated Statements: Umar Khalid’s Counsel Assails UAPA Conspiracy Case

NEW DELHI – In a sharp critique of the prosecution's case in the 2020 North-East Delhi riots "larger conspiracy" case, counsel for former JNU scholar Umar Khalid argued before a Delhi court that the entire matter rests on a foundation of delayed witness statements, devoid of any corroborative physical evidence. Senior Advocate Trideep Pais, representing Khalid, contended that the case under the stringent Unlawful Activities (Prevention) Act (UAPA) should not have even proceeded as an FIR, as it lacks the fundamental elements of a prosecutable offence.

The submissions were made before Additional Sessions Judge Sameer Bajpai of Karkardooma Courts during arguments opposing the framing of charges against Khalid in FIR 59 of 2020, investigated by the Delhi Police's Special Cell. The case alleges a pre-planned conspiracy to orchestrate the communal violence that engulfed parts of the national capital in February 2020, resulting in 53 deaths and thousands of injuries.

The Core Argument: A Case Built on Statements, Not Evidence

At the heart of the defense's argument is the claim that the prosecution's case is an edifice built entirely on witness testimonies recorded months, and in some instances a year, after the alleged conspiracy unfolded. Mr. Pais forcefully argued that the timing of these statements is "extremely suspicious" and undermines their credibility.

“You can catch hold of anyone 11 months after the event, get them to say anything and that's a UAPA case,” Mr. Pais submitted to the court. “The case of the prosecution is that I don't need evidence. I need statements. This is a case of no physical evidence. Other than the speech.”

He reiterated that the investigation has yielded no physical recovery, no money trail, and no allegation of fund procurement against his client. Out of 751 FIRs registered in connection with the riots, Khalid is named as an accused in only one. This, the defense suggests, points to a selective and targeted investigation rather than a comprehensive probe into the violence.

Mr. Pais questioned the very basis of the FIR, stating, “Normally there should be some kind of evidence before the FIR is registered... But you have named me and called it a conspiracy.”

Questioning the Credibility of Prosecution Witnesses

The defense took specific aim at the reliability of the prosecution's protected witnesses, referred to pseudonymously as Alpha, Beta, and Gamma. Mr. Pais questioned the logic of the investigation, asking why a key conspiracy witness would only surface in September when the FIR was registered in March.

"Let's assume you don't have information before March 06, which is a reflection on the police personnel... would you not on March 06 evening have your 'mukhbir' tell you what it is? Your main conspiracy witness surfaces in September whereas he spoke in May,” he argued, highlighting a significant and unexplained delay that casts doubt on the spontaneity and veracity of the testimony.

A particularly trenchant argument was raised against the classification of certain individuals as witnesses rather than co-conspirators. “How do you have a witness who supports chakka jam, who takes part in all the acts in this conspiracy and is still conveniently a witness?” Mr. Pais questioned. “He doesn't go there as a decoy or spy. He is a part of the activity. How is he not an accused? He is not an approver.”

This line of reasoning challenges the prosecution's narrative by suggesting that individuals who were allegedly active participants in the conspiracy have been granted the protected status of witnesses, a move the defense implies is designed to secure convenient testimony against the primary accused.

The Digital Footprint: Contextualizing WhatsApp Activity

The prosecution has heavily relied on WhatsApp chats to establish a "conspiratorial network." However, Mr. Pais sought to downplay Khalid's role in these digital communications. He clarified that while Khalid was a member of four WhatsApp groups central to the chargesheet, his activity was minimal. He reportedly sent only three messages in one group (DPSG) and remained entirely silent in another key group (MSJ), where no messages were even addressed to him. This challenges the prosecution's portrayal of Khalid as a central figure actively coordinating the alleged conspiracy online.

Legal Backdrop: The High Court's Prima Facie Finding and the Bail Battle

The arguments at the trial court stand in stark contrast to the observations made by the Delhi High Court while denying bail to Khalid and several co-accused on September 2. A division bench had held that prima facie , the roles of Khalid and Sharjeel Imam in the entire conspiracy were "grave." The High Court noted that they had delivered "inflammatory speeches on communal lines to instigate mass mobilization of members of the Muslim community."

The High Court's order, which Khalid has challenged in the Supreme Court with a hearing scheduled for October 27, underscores the low threshold required for the prosecution at the bail stage under UAPA's Section 43D(5). This provision mandates that bail be denied if the court, based on the case diary and police report, finds reasonable grounds to believe the accusations are prima facie true.

However, the standard for framing charges is distinct and requires the trial court to be satisfied that a prima facie case exists for which the accused must stand trial. It is this higher, albeit still preliminary, standard that the defense argues the prosecution has failed to meet. Mr. Pais contended that if the court were to proceed solely on the basis of the current statements, the case "will go nowhere."

The defense had previously argued that the police indulged in “pick and choose” action and flagged that trial courts had found evidence of fabrication in 17 of the 93 riots cases that ended in acquittal.

Having been in custody since his arrest on September 13, 2020, Khalid's case continues to be a focal point in the debate over the application of anti-terror laws in cases involving political dissent and protest. The arguments on the framing of charges will continue on October 28 and 29, in a hearing that will be closely watched by the legal community for its potential implications on the standards of evidence required to prosecute individuals under one of India's most stringent laws.