One year since his incarceration, a man who campaigned against hate crime is defending himself in three cases, including the Delhi riots conspiracy case, which invoked India’s anti-terror law. In one bail order, the judge highlighted the “vindictiveness” of the police investigation.
New Delhi: Shortly after the virtual court hearing in the court of additional sessions judge Amitabh Rawat’s court ended on 16 February, and almost everyone had signed out of the session, Khalid Saifi wore a big grin over his greying beard and hollered, “You need a haircut and shave immediately. Keep smiling. Happy birthday, Ban.”
Saifi, who had logged in from Mandoli jail, was speaking to his friend Anirban Bhattacharya, who was present as an observer in the hearing of first information report (FIR) 59, the conspiracy case of the Delhi riots in which 18 people were charged with grave crimes like terrorism and murder.
From his window in the virtual hearing, Bhattacharya grinned back. In another window, Miriam, Saifi’s seven-year-old daughter, made a heart shape with her hands.
These were a few moments of warmth and levity in an otherwise grim legal battle which 40-year-old Saifi has been fighting since he was arrested last year on 26 February, the day that the communal violence was receding in northeast Delhi.
The Delhi Police have blamed those who led the protests against the Citizenship Amendment Act (CAA), 2019 for the communal violence in which 53 people were killed, 40 of them Muslim.
Saifi is a father to three children, a businessman, and a founder member of United Against Hate, a campaign against hate crimes and mob violence started in 2017.
The Delhi Police say that Saifi, and other anti-CAA protest leaders, including Umar Khalid, Safoora Zargar, Devangana Kalita, and Natasha Narwal, used the anti-CAA protests as a front for planning the Delhi riots and trying to overthrow the Narendra Modi government. The Delhi Police, which reports to the Modi government, say that Saifi organised the funds to foment unrest in the country.
Saifi’s family and lawyers say the allegations against him are baseless. In one bail order,in a case of mob violence in which Saifi was made an accused even though he was not present at the crime scene, additional sessions judge Vinod Yadav highlighted the “non-application of mind” and the “vindictiveness” of the investigation carried out by the Delhi Police.
Saifi’s lawyers have told a district court in Delhi that not only was he arrested without cause on 26 February, he was beaten so badly at the Jagatpuri police station that he suffered fractures in both his legs and was unable to walk for two months.
Video footage from 26 February shows Saifi walking peacefully towards a group of policemen before he is arrested, and footage from 11 March shows him appearing in Karkardooma district court complex in a wheelchair, with both his legs in a plaster.
One year since his incarceration, Saifi has his hands full with trying to defend himself in three cases, including the conspiracy case which invokes the Unlawful Activities (Prevention) Act, 1967, India’s anti-terror law.
While getting bail in two of three cases, he remains behind bars because of the UAPA case. The policemen who allegedly beat him inside Jagatpuri police station are yet to be identified.
As early as 26 February, when Saifi was produced in Shahdara district court in the parking lot of the Karkardooma court complex at around 9 pm, around eight hours after he was arrested, he told Metropolitan Magistrate Prayank Nayak that he was beaten and the magistrate ordered an inquiry. Nayak’s handwritten order says, “At this stage, Khalid submits that he has been beaten by police personnel and has suffered injury due to the same. ACP convened to conduct inquiry in this regard.”
On 17 August 2020, Saifi’s wife, Nargis Saifi filed an affidavit in the court of Amitabh Rawat during bail proceedings, alleging that her husband was tortured in police custody.
Nargis said that had seen him in a wheelchair with both his legs in plaster in Mandoli jail one day after he was arrested, with injury marks on his face and neck. She said that she had the bloodstained mustard t-shirt and dark-bluish grey jeans which he was wearing on the day he was arrested.
“This was a clear case of custodial torture. Despite the judicial magistrate asking the ACP to inquire about Khalid Saifi’s injuries, there had been no response from the police,” said Senior Advocate Rebecca John, who is representing Saifi.
There is nothing stopping the Delhi Police from registering a suo moto FIR in light of the gravity of the allegation and the video footage that suggests Saifi was beaten in police custody.
But Chinmoy Biswal, Public Relations Officer (PRO) of the Delhi Police, said it was up to the courts to take cognisance of the matter and order the police to investigate.
“It is a very standard allegation. If there is truth to it, they are free to approach the court,” said Biswal, noting that a Delhi court had recently rejected a petition of Jamia Millia Islamia University seeking action against use of “excessive force” by police in December 2019.
In June 2020, the National Campaign Against Torture (NCAT) in its “India: Annual Report on Torture 2019” said torture was routine in police and judicial custody, five people died in custody every day, and there is “absolute immunity to the perpetrators of torture.” Of the 125 people who died in police custody in 2019, 93 died due to alleged torture and foul play, while 24 of them died in suspicious circumstances with the police claiming they committed suicide.
Of the 125 deaths, the report said that 75 people or 60% belonged to the poor and marginalised communities including 15 Muslims and 13 Dalits.
On Saifi’s case, Suhas Chakma, coordinator of NCAT, said that it was incumbent on the police and the National Human Rights Commission (NHRC) to investigate the allegation of torture.
“If you are a law enforcement official, the law requires you to take cognisance of a crime whether one files a complaint or not. It is the responsibility of the police, said Chakma. “The law requires them to take suo moto action.”
The Delhi Police are yet to make any arrests in the case of Faizan Khan, who along with four other Muslim men was beaten and humiliated by policemen on a public road on 24 February, and died two days later.
Remembering And Learning To Forget
In a recent conversation with Article 14, 34-year-old Nargis said that she knew something was terribly wrong when she saw him in a wheelchair on 27 February 2020, his beard torn and scratch marks on his face. While she tried asking him about it when he phoned from jail, the calls lasted five minutes, and he preferred speaking of ordinary things to his wife, children and elderly mother.
When she visited him on 8 February for the first time after physical meetings in jail were barred following the onset of the Coronavirus pandemic last year, Nargis said that they had their first heart-to-heart about the things he had endured.
He told her that when he was confined to a dirty room in the police station on 26 February, he had requested for a duster to do a little cleaning so that he could perform namaaz. He told her that he had never imagined that he would be beaten. He told her that he was beaten with belts and lathis by policemen for more than 30 minutes and taken to the bathroom where his head was dunked in water. He told her that he heard the policemen talking about urinating on him.
When she asked her husband if the policemen had urinated on him, Nargis said that Saifi told her that he didn’t know because he was already wet from being dunked in water, half-conscious, and bleeding.
Saifi told her that when he was produced before a judge in the parking lot of the Karkardooma district court, he could barely stand, but told the judge that he had been beaten and given nothing to eat even though he was diabetic.
“He said that the judge got him tea and some chips to eat,” said Nargis.
While he speaks of the events of 26 February, Nargis said that Khalid also tells her about what came after; things like how his fellow inmates had helped in his recovery by putting oil and massaging his legs.
“When I’m angry with the policemen or speak rudely to them, he tells me not to feel bitter towards people. He tells me there is no point being rude and hostile,” she said. “He says this is happening because of the time our country is passing through and the time we are living through.”
Nargis said she retorts by asking him what if something had happened to him that night in police custody. “He says, ‘but nothing happened to me.’ Just confront the instance before us,’” she said. “He always says this one thing that I really like. He says, ‘we shall fight and we shall win.’ He says, ‘All time doesn’t stay the same. Things always change.’”
Three FIRs And The Case So Far
Saifi was arrested on 26 February in FIR 44/2020 of Jagatpuri Police Station for crimes under the Indian Penal Code, 1860 and the Arms Act, 1959 including attempt to murder, assaulting a public officer,and rioting. The FIR says that at about 12:15 pm on 26 February, Saifi urged a gathering near Masjid Wali Galli in Khajuri Khas to pelt stones at a police force, and someone fired from the crowd. It says that Head Constable Yojraj barely escaped with his life and constable Vinod was sent for medical treatment.
Later that day, the FIR says, the police arrested a minor in possession of a katta (a country-made pistol). The minor, in his “disclosure statement,” a confession made to policemen that has no evidentiary value, said that Saifi had given him the pistol.
Saifi applied for bail in FIR 44/2020 on 18 March.
Appearing before Additional Sessions Judge Manjusha Wadhwa, his lawyer Rebecca John argued that her client was falsely implicated and beaten in police custody, the disclosure statement of his co-accused was not admissible, and that Section 307 (attempt to murder) was wrongfully invoked because the bullet did not hit HC Yograj and constable Vinod only sustained a simple injury.
Denying him bail, Wadhwa said the “allegations against the accused Khalid are serious,” and the investigation was ongoing.
The chargesheet in FIR 44/2020 was filed on 20 April, 2020. Saifi applied for bail for a second time on 17 July, 2020 and was granted it on 11 September, 2020.
Saifi’s lawyers argued that the chargesheet makes vague and general allegations of him being part of a group of protestors who attacked the police by firing and throwing stones at them. They argued that there is no CCTV footage of him committing any violence or instigating people to do so.
The only MLC (medico-legal certificate for constable Vinod) filed by the police shows a simple injury, sections 25 and 27 of the Arms Act are not made out because there is no allegation of him using a firearm, and the allegation that he supplied a katta to a co-accused was false.
Judge Amitabh Rawat said that he was granting bail after studying the
governing principles of granting bail laid out by the Supreme Court—nature and gravity of offence, role ascribed to the accused and material collected during the investigation, period of custody, the accused being a flight risk, and threat or influence over the witnesses or hamper the investigation.
Saifi was arrested on 21 March in FIR 59/2020 of the Crime Branch, the conspiracy case which invokes the IPC, UAPA and the Prevention or Damage to Public Property Act, 1984 (PDPP), and pins the blame for the Delhi riots on the leaders of the anti-CAA protest. The Delhi Police filed an 18,000-page chargesheet in the case on 17 September and a supplementary one on 22 November.
Saifi’s lawyers are yet to move bail in this case.
“In other cases, where the court takes into account the allegations, and the legal requirements for bail applications, the rigours are high in UAPA matters. More so, the record is voluminous. We are still in the process of going through the documents,” said Bhavook Chauhan, Saifi’s lawyer.
On the allegation that Khalid was part of a conspiracy and organizing
funds for a riot, Chauhan said he could not give a detailed rebuttal because it would give away Saifi’s defense.
He, however, did say that the disclosure statement attributed to Saifi was coerced and his lawyers had filed a retraction application to put that on record. He also said that many of the witnesses in the case are police personnel and the private individuals (witnesses) have huge contradictions in their statements.
“We understand they have been planted by the police to falsely implicate these persons. If we reach the stage of trial, we will have the opportunity to discredit them during the course of cross-examination,” he said.
On the money trail which the Delhi Police attribute to Saifi, Chauhan said, “They have tried to project that there was a money trial which was being used for unlawful purposes. This is preposterous. These are absurd allegations without any basis.”
Saifi was arrested on 6 June in FIR 101/2020 of Khajuri Khas Police Station, for crimes like rioting, assaulting a police officer, and dacoity,
under the IPC, the PDPP and the Arms Act. This FIR, in which former Aam Aadmi Party councillor Tahir Hussain, is the main accused, pertains to an incident of mob violence and stone pelting near Chandbagh Pulia at around 2 pm on 24 February.
The charge sheet was filed on 2 June, 2020, four days before Saifi was arrested on 6 June, 2020, and a supplementary charge sheet was filed on 4 September, 2020. Saifi applied for bail on 16 October, 2020 and was granted it on 4 November, 2020.
While there was no specific allegation against Saifi with respect to the mob violence in FIR 101/2020 or him being present at the scene of the crime, Special Public Prosecutor for the state Manoj Chaudhary argued that Saifi’s call records show that he was in touch with Hussain and political activist Umar Khalid. Chaudhary argued that the police had tracked his location and found he was at Shaheen Bagh on 8 March, and police witness Rahul Kasana saw Saifi meeting with Hussain and Khalid.
Saifi’s lawyers argued that he was not present at the scene of the crime and the prosecution has only relied on disclosure statements to build his case. They said that all the police have is his call record which shows that he was in touch with other co-accused like Hussain and Khalid since the beginning of the anti-CAA protests in December 2019.
They argued that just because the three men were present in Shaheen Bagh on 8 March does not prove they were hatching a conspiracy. In any case, they argued that the allegation of conspiracy was alleged in FIR 59, and that Saifi could not be prosecuted twice for the same matter.
In the most strongly worded take down of the Delhi Police investigation of the Delhi riots, Additional Sessions Judge Vinod Yadav in his bail order dated 4 November, said, “The applicant cannot be permitted to remain behind bars in this case on the basis of such a sketchy material against him.”
Judge Yadav said that it was a matter of record that Saifi was not at the crime scene, and there was no witness or CCTV footage to place him there. He said that just because the mobile phone locations of Saifi, Hussain and Khalid, placed them at Shaheen Bagh on 8 March, or that police witness Rahul Kasana saw them meeting, did not establish any conspiracy.
Yadav said that police witness Kasana in his statement in FIR 59 on on 21 May never mentioned Khalid in the context of a “criminal conspiracy,” “and now all of a sudden,” in his statement recorded in FIR 101 on 27 September, “blew the trumpet of ‘criminal conspiracy’ against the applicant.”
“This prima facie does not appeal to the senses,” he said.
Yadav said that “sole evidence” the police had was Kassana’s statement from 27 September in which he stated that he was standing outside a building in Shaheen Bagh, where he had dropped off Hussain, and he saw Saifi and Khalid enter the building.
“In my humble opinion, chargesheeting the applicant in this case on the basis of such an insignificant material is total non-application of mind by the police which goes to the extent of vindictiveness,” Yadav wrote.
Despite having been granted bail in two of three Delhi riot cases that he is fighting, Saifi remains incarcerated under FIR 59.
“The problem is coming because of the UAPA. They have put UAPA so they don’t get out of jail and raise their voices,” said Nargis. “But my hope has doubled after the second bail order. This year, I am going to do everything in my power to help my husband and prove his innocence.”
A Dirty Bucket And A Love Letter
After almost a year of not being able to meet her husband because of the coronavirus pandemic, Nargis said that she was ecstatic about meeting him twice within one week in February. The first time was for about five minutes on 2 February following the first physical hearing of the accused in FIR 59 in Amitabh Rawat’s court, one day before Saifi’s birthday on 3 February.
“Talk? We did not talk. We just held each other. Him, and me and our three children were in one big hug. Maryam had made a card for her father’s birthday. The police officers said he could take the card. The lawyers got very emotional,” said Nargis.
The second time was on 8 February in Mandoli jail.
While Nargis was thrilled that she was able to bring him clean and ironed clothes for the first time in jail, she was horrified at the sight of a “dirty bucket with some kind of liquid” in which the prison officers told her to dunk the clothes.
“Everyone who was coming was having to do the same. If they want to stop the spread of coronavirus, how does doing this help with that? It defeats the whole purpose of giving clean clothes,” she said. “It was so dirty.”
Then, however, other events took over. Nargis said that Saifi gave her a “love letter,” the first after 13 years of marriage.
“He said he was sorry for many things. He said thank you for many things. I teased him that if you could write so well then why did you not write one before. He said that he did not feel the need before, but now he missed my talking all the time,” she said. “I told him that you don’t have to say thank you and sorry. You are my partner in everything.”
(Betwa Sharma is an independent journalist who covers politics and civil liberties. She was the politics editor at HuffPost India.)