NEW DELHI — Even as Asif Iqbal Tanha’s lawyer argued that the Delhi Police had presented two different versions of where a key conspiratorial meeting allegedly took place on 22 February, Additional Sessions Judge Amitabh Rawat denied bail to the 24-year-old student of Jamia Millia Islamia University, who is charged with terrorism and murder in the Delhi riots conspiracy case.
While almost all bail applications have been rejected in First Information Report (FIR) 59/2020 of the Crime Branch since it was registered on 6 March, this rejection is significant because it comes after Judge Rawat has read the 17,000 page chargesheet that the Delhi Police filed in his court in Karkardooma district court on 16 September. A chargesheet is the final report prepared by an investigative agency after completing its investigation in a criminal case.
In the order dated 26 October, Rawat expounded on what constituted a conspiracy. He said that meeting of two or more minds for doing an illegal activity constituted a conspiracy, it was not necessary for each conspirator to have known or participated in each and every conspiratorial act, “the agreement among the conspiracy can be inferred by necessary implication,” and a conspiracy was proved by “circumstantial evidence as the conspiracy is seldom and an open affair.”
At least 21 people have been arrested in FIR 59, the Delhi Police case that pins the blame for the Delhi Riots on the students and activists that organized the protests against the Citizenship Amendment Act (CAA) in December and January. At least 15 people have been charged under various sections of the Indian Penal Code, the Arms Act, and the Unlawful Prevention Activities Act (UAPA), India’s anti-terror law. The Delhi Police say the protests were a front of planning deadly riots to overthrow the Narendra Modi government. Political activist and a PhD from Jawaharlal Nehru University, Umar Khalid, has been cast as the “mastermind” of the February riots that killed 53 people, most of them Muslim.
Tanha, a poor student from Jharkhand enrolled in Jamia Millia Islamia University’s Persian language program, was first arrested for rioting and attempt to murder in FIR 298/2019 of the Jamia Nagar Police Station, and then FIR 59/2020 for murder and terrorism. He has been lodged in Tihar Jail since May. While granting him bail on 28 May in FIR 298, Additional Sessions Judge Gaurav Rao of the Patiala House district court said that he had no prior criminal antecedents. Judge Rawat first denied him bail in FIR 59 on 4 September, 12 days before the chargesheet was filed in his court.
The Delhi Police case, built on statements of protected witnesses who identities are concealed, says that Asif and other students, some of who were members of the Jamia Millia Coordination Committee (JCC), a student group that was formed on 17 December to plan the protests against the new citizenship law, were actually planning roadblocks to instigate a communal riot.
“There are statements of protected witnesses like James, Robot & others which clearly show the role of the applicant as also the other coaccused persons,” said Public Prosecutor Amit Prasad.
Judge Rawat said that the veracity of these statements will be tested during cross-examination.
Defense lawyers in FIR 59 have said that statements attributed to their clients have been coerced.
Siddharth Aggarwal, Tanha’s lawyers, said that in reply to his client’s first bail application dated 24 July, the Delhi Police had said that he was part of a meeting at Jafrabad metro station on 22 February planning the riots and a roadblock in the area. But when Tanha replied that he had never been to Northeast Delhi, the Delhi Police said the meeting was held at Jamia Millia Islamia —“a clear false afterthought,” his lawyer said.
The chargesheet says that the meeting was held at ten in the night near Gate No. 8 of Jamia Millia Islamia University, Tanha’s lawyer said, noting that the roadblock at Jafrabad Metro Station had already materialised by this time.
The Delhi Police in other chargesheets of the Delhi riots has alleged that the road block was a consequence of the call made by Dalit leader Chandrashekhar Azad, Tanha’s lawyer said.
“The repeatedly changing stands of the Investigating Agency only go to show their inherent falsity,” Aggarwal said a per the bail order dated 26 October.
Tanha’s lawyer also said that his client had not raised any funds, that neither the JCC nor the Student of Islamic Organisation (SIO), a group of which he is a member, were listed as terrorist organisations under the UAPA, and there was no cause to invoke the UAPA.
In his order, Judge Rawat summarised the Delhi Police’s version of events in the chargesheet, found there to be “vociferous agitation in the guise of Citizen Amendment Bill,” and then concluded that the UAPA stands.
“Thus, vociferous agitation in the guise of Citizen Amendment Bill coupled with other activities of violence would show it was meant to cause or intended to cause disaffection against India,” he wrote.
In the order rejecting bail for Tanha in a case related to riots that occurred in the last week of February, Rawat took note of the speech made by Sharjeel Imam, a Jawaharlal Nehru University student and a co-accused in FIR 59, at Jamia Millia Islamia University on on 13 December, and described it as “provocative.”
It is the Supreme Court’s well-established position that the state needs to demonstrate the proximity between speech and violence.
Rawat said that it did not matter if Tanha was not present in the northeast during the riots or that he had not raised funds since others in the conspiracy were accused of doing so. “Conspiracy has to be read as a whole and not piecemeal,” he wrote.