High Court Again Denies Bail to Athar Khan in Delhi Riots ‘Conspiracy’ Case

New Delhi: A bench of the Delhi high court on Tuesday (July 7) again denied bail to Athar Khan, who is among those accused in the widely criticised Delhi riots ‘conspiracy’ case and has been jailed for six years pending trial.

“… While others were suggesting that he resort only to non-violent protests, he [Khan] persisted with his objective of engaging in violent protests, to the extent of even causing death,” Justices Prathiba Singh and Madhu Jain of the high court said on Tuesday.

Khan, they added, “cannot be held to be a mere local-level operator but one of the main conspirators who conspired to cause deaths during the riots”, making his case “clearly distinguishable from the other co-accused persons”.

Finding the accusations against him to be prima facie true, the judges said this bars him from receiving bail in view of the restriction imposed by section 43(d)(5) of the Unlawful Activities (Prevention) Act (UAPA) that the police have invoked in its ‘conspiracy’ case.

“In fact, if the Appellant is released on bail, he is likely to pose a flight risk, having regard to the statements made by the protected witnesses. The Appellant is also likely to adversely influence the witnesses whose evidence is yet to be recorded. Thus, even if the normal conditions of bail are applied, in this case, the Appellant, owing to his role and the protection that needs to be given to witnesses, is not entitled to bail,” they said.

Fifty-three people were killed and over a hundred others suffered injuries during the February 2020 riots in northeast Delhi. Much of the violence began with attacks on anti-Citizenship (Amendment) Act (CAA) protest sites, but the Delhi police has accused activists protesting against the law of conspiring to carry out a “regime change operation” by way of their agitation.

Police arrested Khan on July 2, 2020 in connection with the ‘conspiracy’ case and the trial court denied him regular bail in October 2022. The high court upheld that decision last September, but Khan drew on the Supreme Court's grant of bail to a number of other accused persons this January to re-approach the trial court, which again declined to provide relief that same month.

According to the prosecution, a protected witness dubbed ‘Pluto’ alleged that Khan had said “our issue will not be resolved” until “100-200 people die” and “100-200 places are set on fire”.

Another individual named Ovais Sultan Khan was cited as having “dissuaded the Appellant from causing any violence” in his WhatsApp chats and advising Athar Khan to “keep the protests against the CAA and NRC [National Register of Citizens] as non-violent”.

Ovais Sultan Khan's messages indicating the above “more than prima facie [establish]” Athar Khan's alleged role in the riots, high court Justices Singh and Jain said on Tuesday.

Section 43(d)(5) of the UAPA requires that an accused person be denied bail if the court believes the charges against them to be prima facie true.

While a Supreme Court bench of Justices Aravind Kumar and P.B. Varale denied bail to activists Umar Khalid and Sharjeel Imam in the ‘conspiracy’ case this January, another bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan disagreed with that decision in May, saying that the court's verdict in Union of India v. K.A. Najeeb holds that UAPA-accused must ordinarily be granted bail if a speedy trial seems unlikely and they have already been jailed for a significant portion of the prescribed punishment.

The “rigours” of provisions like section 43(d)(5) would “melt down” under such circumstances, Justices Nagarathna and Bhuyan cited the Najeeb judgment as saying. This dispute has since been forwarded for consideration by a larger bench.

However in Khan's case the Delhi high court held on Tuesday that “even if the normal conditions of bail are applied” he would not be entitled to relief.

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