Delhi High Court
Athar Khan vs State Of Nct Of Delhi on 7 July, 2026
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 26th May, 2026
Pronounced on: 7th July, 2026
Uploaded on: 7th July, 2026
+ CRL.A. 137/2026 & CRL.M.A. 9910/2026
ATHAR KHAN .....Appellant
Through: Mr. Arjun Dewan, Ms. Varisha
Sharma, with Mr Aryan Deol, Adv.
versus
STATE OF NCT OF DELHI .....Respondents
Through: Mr. S. V. Raju, ASG along with Mr.
Madhukar Pandey, SPP, Mr. Dhurv
Pandey, Ms. Ananya Bose, Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
2. The unfortunate North East Delhi riots which occurred on 23 rd, 24th, and
25th February, 2020 are the context in which the present appeal has arisen.
3. The Appellant- Athar Khan has filed this appeal under Section 21(4) of
the National Investigation Agency Act, 2008 read with Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 assailing the order dated 29th
January, 2026 (hereinafter, ‘impugned order’) passed by the ld. Additional
Sessions Judge-03 (Shahdara), Karkardooma Court, Delhi in I.A. No. 271/2026
in Sessions Case No. 163/2020. The present case arises out of FIR No. 59/2020
dated 6th March, 2020 registered at PS. Crime Branch, Delhi.
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4. Vide the impugned order, the application filed by the Appellant seeking
regular bail has been dismissed by the Trial Court.
Background
5. In the riots which took place in the heart of East Delhi on 23rd, 24th and
25th February, 2020, a total of 53 persons succumbed to their injuries and lost
their lives. Approximately more than 100 persons sustained injuries, and
extensive damage was caused to the properties of the residents. The situation
took several days to return to normalcy.
6. FIR No. 59/2020 was registered at PS. Crime Branch, Delhi initially
under Sections 147, 148, 149 and 120B of the Indian Penal Code, 1860
(hereinafter, ‘IPC‘). However, during the course of investigation, offences
under Section 120B read with Sections 109, 114, 124A, 147, 148, 149, 153A,
186, 201, 212, 295, 302, 307, 341, 353, 395, 420, 427, 435, 436, 452, 454, 468,
471 and 34 of the IPC as also under Sections 13, 16, 17 and 18 of the Unlawful
Activities (Prevention) Act, 1967 (hereinafter, ‘UAPA’), Sections 25 and 27 of
the Arms Act, 1959 and Sections 3 and 4 of the Prevention of Damage to Public
Property Act, 1984 were added to the subject FIR.
7. The allegations in the said FIR were that there was a criminal conspiracy
hatched by several persons for commission of large scale riots against the
enactment of the Citizenship Amendment Act (hereinafter, ‘CAA’) and the
National Register of Citizens (hereinafter, ‘NRC’).
8. The factual narrative in the present matter emanates from the case of the
prosecution that a deep-rooted criminal conspiracy was allegedly hatched by
several accused persons and individuals, including the present Appellant, to
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orchestrate large-scale riots in the National Capital Territory of Delhi in protest
against the enactment of the CAA and the NRC.
9. These riots were allegedly carried out by inciting widespread communal
violence on and around the 23rd, 24th and 25th of February, 2020, which
resulted in the loss of 53 lives, including the death of a Senior Police Officer
and an Intelligence Bureau Official, grievous injuries to several Police officers
and members of the public, damage to more than 1,500 public and private
properties, etc, apart from the other intangible harm caused to the Nation as a
consequence.
10. As per the Appellant, he was initially examined as a witness in the
present FIR. During the course of the investigation, the mobile phone of the
Appellant was also seized on 1st May, 2020. The Appellant was, thereafter,
arrested on 2nd July, 2020 and was arrayed as Accused No. 15 in the main
charge-sheet dated 16th September, 2020.
11. The first supplementary charge-sheet in the present case was filed on
22nd November, 2020. Further charge-sheets have also been filed, however, for
the present purpose, the details of the same would not be relevant.
12. Various accused persons arrayed in the present case had filed
applications, initially, before the Trial Court seeking regular bail. The said bail
applications had been rejected by the Trial Court from time to time. Even the
Appellant in the present case had initially filed an application seeking regular
bail before the Trial Court being I.A. No. 126/2022. However, the same was
rejected vide order dated 12th October, 2022 passed by the ld. Additional
Sessions Judge-03 (Shahdara), Karkardooma Court, Delhi.
13. The said order was challenged in an appeal by the Appellant which
resulted in a detailed judgment being passed by a Co-ordinate Bench of this
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Court on 2nd September, 2025 in CRL. A. 677/2022 titled ‘Athar Khan v. State
of NCT of Delhi‘. Vide the said judgment, the Court considered and
adjudicated upon nine appeals preferred by nine accused persons, including the
present Appellant, arising out of the present FIR i.e., FIR No. 59/2020, wherein
regular bail was sought. The Co-ordinate Bench of this Court rejected all the
said appeals and declined to grant bail to the accused persons, including the
Appellant. The role of the Appellant was discussed in detail in the said
judgment by the Co-ordinate Bench of this Court.
14. In the said judgment, the Co-ordinate Bench of this Court, from
paragraph 151 onwards records that the Appellant-Athar Khan had participated
actively as part of the Delhi Protest Support Group (hereinafter, ‘DPSG’)
WhatsApp group, United Against Hate (hereinafter, ‘UAH’) group and CAB
Team. On the night of 22nd February, 2020 a meeting was held at Ayaz’s
basement in Chand Bagh, Delhi in which the Appellant had participated leading
to co-ordinated attacks. Again on 23rd February, 2020 a meeting was held at
one Mukhtyar’s house in Chand Bagh attended by DPSG members including
the Appellant where they had co-ordinated destruction and disablement of the
CCTVs and mobilisation on a large scale for violent outbreaks.
15. The findings of the Co-ordinate Bench of this Court in respect of the
Appellant, after analysing the statements of various protected witnesses,
showed that he had played an active role in the entire conspiracy. The Appellant
was also present at the various meetings especially on the intervening night of
23rd and 24th February, 2020. The Appellant had conspired to destroy
Government property along with the other co-accused persons. The Co-
ordinate Bench of this Court further distinguished the role of the Appellant
from that of the other co-accused persons namely Devangana Kalita, Natasha
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Narwal and Asif Iqbal Tanha. Accordingly, the Co-ordinate Bench of this Court
refused to grant relief to the Appellant.
16. The said judgment dated 2nd September, 2025 passed by the Co-ordinate
Bench of this Court was challenged by several co-accused persons before the
Supreme Court. The said appeals were decided by the Supreme Court vide its
judgment in Gulfisha Fatima v. State (Govt. of NCT of Delhi), 2026 INSC 2.
Out of the nine accused persons whose appeals were decided by the Co-ordinate
Bench of this Court vide judgment dated 2nd September, 2025, seven accused
persons approached the Supreme Court, out of whom bail was denied to two
accused persons i.e., Umar Khalid and Sharjeel Imam. The remaining accused
persons were granted bail by the Supreme Court. Notably, the present Appellant
did not challenge the judgment dated 2nd September, 2025 before the Supreme
Court.
17. The judgment in Gulfisha Fatima (Supra) was rendered on 5th January,
2026 and, thereafter, the Appellant, on 13th January 2026, moved an
application before the Trial Court seeking regular bail relying upon the
judgment of the Supreme Court in Gulfisha Fatima (Supra).
18. The Appellant in effect sought parity with five co-accused who were
granted bail by the Supreme Court vide the judgment passed in Gulfisha
Fatima (Supra). The said application for bail was considered by the Trial
Court. The Trial Court came to the conclusion that the prima facie opinion
recorded by it in the earlier round, i.e., vide order dated 12th October, 2022,
wherein the accusations against the Appellant-Athar Khan were held to be true,
and the same having been upheld by the High Court and not having been
challenged by the Appellant before the Supreme Court, no other opinion could
be formed by the Trial Court. The relevant portion of the impugned order is set
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out below:
“9. The Court has heard arguments and perused the
record.
10. As far as the merits of the case are concerned, the
Court has already discussed the same in its previous
order dated 12.10.2022 and now, the only question
before the Court is, if after the order dated 05.01.2026
of the Hon’ble Supreme Court, this Court should
consider the application and grant the desired relief to
the applicant.
11. No doubt that vide order dated 05.01.2026, the
Hon’ble Supreme Court has granted bail to co-accused
persons namely Shifa-Ur- Rehman, Salim Khan,
Meeran Haider, Shadab Ahmad and Gulfisha Fatima.
As submitted by ld. counsel for the applicant, as
discussed by the Hon’ble Supreme Court in the
mentioned order, the case of the applicant may be on
parity with the case of any other accused persons who
have been granted bail, but this Court must keep in
mind that the earlier bail application of the applicant
has already been dismissed by this Court after
considering merits in detail. Moreover, this Court in its
previous order dated 12.10.2022 has given clear
opinion that the accusation against the applicant
Athar Khan are prima-facie true and as such the
embargo created by Section 43D(5) of UAPA applies.
Thus, when the Court has formed a certain opinion
against the applicant, it cannot review its order and
give any opinion contrary to the previous opinion.
More importantly, the facts and circumstances of the
case remain the same and the bar u/s 43D(5) of UAPA
still persists. Furthermore, vide order dated
02.09.2025, the Hon’ble High Court of Delhi has also
dismissed the appeal of the applicant and denied bail
to the applicant, giving opinion that there is prima-
facie case against the applicant and embargo u/s
43D(5) of UAPA automatically got attracted.
Therefore, after the said finding of the Hon’ble HighSignature Not Verified
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Court, this Court cannot form any other opinion and
grant the desired relief to the applicant.
12. Accordingly, the Court doesn’t find merits in the
application and the same is hereby dismissed.”
The above order rejecting bail in the second round, after the rendering of the
judgement by the Supreme Court, in Gulfisha Fatima (supra) is under appeal
in the present case.
Submissions on behalf of the Appellant
19. Mr. Arjun Dewan, ld. Counsel for the Appellant submits that the role of
the Appellant is almost similar to the role of the co-accused, Shadab Ahmad
who has already been granted bail by the Supreme Court in the decision in
Gulfisha Fatima (Supra). Various paragraphs of the said judgment have been
relied upon by the ld. Counsel for the Appellant.
20. It is submitted on behalf of the Appellant that there are more than 880
witnesses to be examined in total in the present case and the Appellant has been
in custody for around six years. Ld. Counsel for the Appellant submits that the
Appellant is merely a local level facilitator and the judgment in Gulfisha
Fatima (Supra) needs to be followed and hence, the Appellant should be
granted bail. Ld. Counsel for the Appellant has also relied upon the recent
decision of the Supreme Court in Syed Iftikhar Andrabi v. National
Investigation Agency, Jammu, 2026 INSC 503
21. The main submission on behalf of the Appellant is that the prosecution
relies upon the statements of a protected witness namely ‘Pluto’, however,
according to the ld. Counsel, the same is not reliable as there are clear
contradictions between the statements made under Sections 161 and 164 of the
Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC‘). Ld. Counsel for the
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Appellant submits that both these statements read together would show that
immense improvement has been made by the said witness within a period of
four days. Ld. Counsel highlights that the statements of the protected witness,
‘Pluto’ are diametrically opposite.
22. Ld. Counsel for the Appellant further submits that the statements of the
protected witness, ‘Pluto’ would be tested in evidence but for the time being,
contradictions and improvements between the statements recorded under
Section 161 of the CrPC and the statement under Section 164 of the CrPC are
itself quite demonstrative of the fact that they are not prima facie reliable.
23. Further, it is submitted on behalf of the Appellant that the Whatsapp
chats of the Appellant would also show that the only plan on behalf of the
Appellant was to indulge in non-violent protests and that any messages to the
contrary are required to be construed in the proper context, particularly in view
of the fact that the Appellant was never found in possession of any weapons,
had no meetings with Umar Khalid and no incriminating articles were
recovered from his possession. The submission, therefore, on behalf of the
Appellant is that the Whatsapp chats would also not implicate the Appellant in
respect of any killings, whatsoever.
24. Ld. Counsel for the Appellant has placed reliance upon the order of the
Supreme Court dated 22nd May, 2026 passed in SLP (CRL) No. 2867/2026
titled ‘Tasleem Ahmed v. State of Govt. of NCT of Delhi‘ where similarly
placed persons, who had undergone substantial periods of incarceration, have
been granted bail. Paragraph 27 of the said order has been relied upon by the
ld. Counsel for the Appellant.
25. Reliance is also placed upon the decision in Gulfisha Fatima (Supra) to
argue that even in the case of the co-accused, Gulfisha Fatima, a lady who was
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having a much graver participation and a more active role, the Supreme Court
has granted bail to her. The submission in this regard is that the Appellant
would at least be entitled to parity with Gulfisha Fatima, who stands on the
same footing in terms of her alleged role, meetings, communication and
execution on the ground.
26. Finally, ld. Counsel for the Appellant submits that the Appellant is at
best a local-level facilitator or executor with no decision making power in the
entire conspiracy and hence, deserves to be released on bail.
Submissions on behalf of the Respondent- State
27. On the other hand, Mr. S.V. Raju, ld. ASG along with Mr. Madhukar
Pandey Ld. SPP has highlighted the statement of the protected witness, ‘Pluto’,
who has attributed a specific statement to the Appellant i.e., ‘that until 100-
200 people are not killed, the issues will not be resolved’.
28. Ld. ASG further relies upon the WhatsApp conversation between one
Ovais Sultan Khan and the Appellant to argue that the Appellant has actually
instigated violent protests despite opposition from his own group.
29. It is urged that initially the Appellant relied upon the role of Shadab
Ahmad and parity was sought with him, however, the Appellant later on sought
parity with Gulfisha Fatima.
30. Further it is contended that in the case of the Appellant, the judgment of
the Co-ordinate Bench of this Court dated 2nd September, 2025 in CRL. A.
677/2022 has attained finality as the same was not challenged before the
Supreme Court by the Appellant. As per ld. ASG, the embargo under Section
43D(5) of the UAPA would apply to the Appellant as none of the findings
against Appellant in the decision dated 2nd September, 2025 have been set
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aside and the same having acquired finality, the Appellant cannot now take
benefit of the judgments in Gulfisha Fatima (Supra) or Tasleem Ahmed
(Supra).
31. Finally, it is submitted that in the case of all the other accused persons
who have been granted bail in the present FIR, there has been no evidence of
killings that has come forward. Whereas in the present case, a witness has
clearly deposed that the Appellant had intention to cause killings and the fact
that 53 people were actually killed in these riots cannot be lost sight of.
Analysis and Findings
32. At the outset, it needs to be noted that the present appeal arises out of the
second regular bail application which had been filed by the Appellant before
the Trial Court. In the first round, the regular bail application filed by the
Appellant was dismissed by the Trial Court. The same was even upheld by a
Co-ordinate Bench of this Court. There was no challenge to the said order by
the Appellant.
33. The Court has perused the material placed on record. The prosecution’s
case is that the Appellant was an active conspirator in the North-East Delhi riots
and the same is clear from various WhatsApp chats of the DPSG group placed
on record by the ld. Counsel for the Appellant. It can be seen from the said
chats that the Appellant has repeatedly sent messages on the said group and has
actively participated in the riots. Moreover, the said WhatsApp chats would
also show that in some places the Appellant has sent some extremely
incriminating messages which prove an active role not just in causing riots,
destruction of property, etc., but an active role in the deaths which have been
caused during the riots.
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34. Further, one of the protected witness in the present case, namely, ‘Pluto’
stated in his statement recorded under Section 164 of the CrPC as under:
“On S.A
(Illegible/Blurred)। मैं ऑर्ड र भी (Illegible/Blurred) हुँ ।
दिल्ली िं ग ं से चार दिन पहले 20/21 फरवरी 2020 क मुझे
(Illegible/Blurred) ऑर्ड र िे ने के दलये 5 आिमी आये। उनके
नाम अथर, शािाब, सलीम मुन्ना, सलीम खान और ररजवान
दसद्दीकी थे। उन् न ं े मुझे 10,000 की दबरयानी का ऑर्ड र दिया।
(…sic…) चाुँ िबाग में अय्याज के ऑदफस (ज बेसमेंट में है )
यहाुँ जायेगी दबरयानी। कुछ पैसे एर्वां स दिये और कहा बाकी
पैसे आने पर अय्याज भाई िें गे।
उसी दिन रात (overprint text) :30 बजे मैं दबरयानी लेकर
पहुँ चा। मैंने दबरयानी िे कर पैसे मां गे त अथर ब ला दक पैसे
अय्याज भाई आकर िें गे। तब तक हम दबरयानी खा लेते हैं ।
(Illegible/Blurred) दबरयानी खाने लगे। अथर बाकी
(Illegible/Blurred) से बात करने लगा। “अब वक़्त आ गया है
दिल्ली में आग लगाने का। राहल राय भाई (Illegible/Blurred)
आया था”। ब ला “हमने सारी तैयारी कर ली है । हमने
असलहे , पेटर ल वगैरह भरवा दलया है ।
पैसे की हमारे पास क ई कमी नहीं है । पूरी दिल्ली को
िहलाना है। जब तक 100-200 लोग नही ीं मरें गे। 100-200
जगह आगजनी नही ीं होगी तब तक हमारा मसला हल नही ीं
होगा।
अब सब दमलके तैयारी कर ल “। बादक चार ं ब ले “हम तुम्हारे
साथ हैं “।
ररजवान ब ला “दक मैंने यूपी (UP) से शूटर बुला रखे हैं । पैसा
हमारे पास बहत है । दिल्ली क तहस-नहस करना है ।” दफर
अय्याज आ गया। उसने मुझे पैसे दिये और मैं वादपस आ गया।
मैं पूरी रात स नहीं पाया। मैंने स्पेशल सेल के बारे में सुन रखा
था। (Illegible/Blurred) मैं स्पेशल सेल के पास गया।
(Illegible/Blurred) उनक मैंने सारे हालत बताए । र्ीसीपीSignature Not Verified
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साहब ब ले “बादक हमारा काम है । हम िे ख लेंगे”।
(Illegible/Blurred) मैंने िे शदहत में दकया है ।”
35. A perusal of the above would show that as per the protected witness, the
clear and unequivocal stand of the Appellant was “Puri delhi ko dahlana hai.
Jab tak 100-200 log nahi marenge, 100-200 jagah aagjani nahi hogi tab tak
hamara masla hal nahi hoga.”
36. The above statement is corroborated by the WhatsApp messages of one
Ovais Sultan Khan who in fact dissuaded the Appellant from causing any
violence and had advised him to keep the protests against the CAA and NRC
as non-violent. One such message of Ovais Sultan Khan was sent on 17th
February, 2020 at 3:20 p.m. The same reads as under:
“Athar Mian,
I am not educated one.
But I would like to tell you that some local people have
evidences of what you all were saying last night about
your plans of road blockade-your proposal to incite
violence.
So, don’t play with fire because it will not hurt you. It
will hurt us badly.
Our protests will remain nonviolent.”
37. In fact, this was in response to a message sent by the Appellant at 2:47
p.m. where the Appellant is stated to have suggested road blockade and other
violent steps. In fact, on the very same day at 3:34 p.m., Ovais Sultan Khan has
again written to the Appellant -“itnaa samjh lo sirf ki violence nahi karne denge
tumhe aur tumhare dosto ko, bhai.”
38. Ovais Sultan Khan also confirms another WhatsApp chat where the
Appellant is wanting violent protests which is being opposed by many members
of the DPSG group. The WhatsApp chats of the DPSG group, therefore, clearly
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confirm the intentions of the Appellant and the statement made by the protected
witness i.e., Pluto wherein the Appellant was exhorting everyone to cause
actual deaths and damage to public property. The above evidence along with
findings in the earlier bail orders rendered by both the Trial Court and the Co-
ordinate Bench of this Court would prima facie show that the role of the
Appellant is not the same as the other co-accused who have been granted bail
in the present FIR.
39. The prosecution has also set out a case against the Appellant that he was
responsible for inciting violence which allegedly resulted in deaths. However,
the same is based on statements recorded under Section 161 of the CrPC, which
are yet to be established during trial.
40. In the opinion of this Court, any evidence which would point to the
Appellant’s role in the deaths which were caused during the riots would make
Appellant a core conspirator and not merely an executor at the ground level.
41. In Gulfisha Fatima (Supra), the Supreme Court clearly distinguished
between the role of core conspirators and field-level operators. In the said
judgment, the Supreme Court considered and discussed in detail the role
attributed to each of the Appellants therein. The Supreme Court undertook an
individual assessment of the allegations, the material placed on record, and the
specific role ascribed to each of the Appellants, which can be summarised as
under:
Sharjeel Imam
42. In respect of Sharjeel Imam, the Supreme Court holds that the role of the
said co-accused is not episodic. He was part of the mobilisation strategy and
there was a continuing course of conduct by him. He had also engineered the
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course of the WhatsApp groups and chats suggesting mass mobilisation. The
Supreme Court considered the statement of the protected witnesses under
Section 164 of the CrPC. The Supreme Court also considered that Sharjeel
Imam may have outwardly couched his conduct in the language of non-
violence, though he had, in fact, indulged in sustained blockade, choking of
essential supplies and deliberate paralysis of civic life. The observations of the
Supreme Court qua Sharjeel Imam are as under:
“163. The Court is also mindful of the appellant’s
reliance on the assertion that he opposed violence. Such
an assertion does not, at the bail stage, neutralise an
allegation of conspiracy and preparatory orchestration.
A conspirator may outwardly couch the conduct in the
language of non-violence while engaging in acts
intended to create conditions of confrontation and
escalation. The prosecution case is that sustained
blockade, choking of essential supplies, and deliberate
paralysis of civic life are not benign political acts but
steps in a planned trajectory, which then culminated in
violence.”
43. The said Sharjeel Imam is stated to have not even been present in Delhi
during the relevant period in January 2020 but still the Supreme Court held that
even if the accusations are prima facie true, the bail application filed by such
an individual needs to be rejected. Accordingly, the bail application of Sharjeel
Imam was rejected.
Umar Khalid
44. In the case of Umar Khalid, the Supreme Court held him to be a principal
conspirator who promoted the slogan “Bharat Tere Tukde Honge, Insha Allah
Insha Allah”. He had mobilised for a chakka jam along with other co-accused
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persons. He was an active member of the DPSG group. He was also not present
in Delhi during the riots. However, he had delivered several provocative
speeches. His stand before the Supreme Court was that no overt act of violence
was attracted to him and no recoveries were effected but the Supreme Court
held that the role of Umar Khalid was not episodic but was architectural. He
was the organizer and co-ordinator of the Delhi riots. Even though there was
no recovery of weapons from him, the manner in which he had conducted
himself since inception points towards a clear conspiracy on his part. His entire
conduct had the effect of destroying communal harmony. The observations of
the Supreme Court in this regard are as under:
“234. At the bail stage, the Court cannot test whether
the protected witness statements regarding stockpiling
or inducement of local residents will ultimately
withstand scrutiny. What the Court can do is to examine
whether, if those statements are accepted as they stand,
they support an allegation that the agitation was not
confined to symbolic protest, but contemplated
engineered confrontation along communal fault lines.
xxxx
244. Having regard to the prosecution material as
placed, including the chronology of meetings, the
alleged articulation and propagation of the chakka
jam strategy, the operation of coordinating committees
and groups, the protected witness statements alleging
preparatory and escalation-related discussions, the
pleaded movement of protest activity into mixed-
population zones, and the alleged systemic disruption
of civic life in the National Capital, this Court is
satisfied that reasonable grounds exist for believing
that the accusations against Umar Khalid are prima
facie true.
245. The defence submissions, though weighty and
articulated with care, would require this Court toSignature Not Verified
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adjudicate upon credibility, resolve factual disputes,
and choose between competing inferences. That
exercise lies beyond the permissible limits of a bail
inquiry under Section 43D(5).
246. The statutory embargo is therefore attracted. The
appeal filed by Umar Khalid in SLP (Crl.) No. 14165 of
2025 is dismissed. The prayer for bail is rejected.
247. It is clarified that the observations herein are
confined to the consideration of bail and shall not
influence the Trial Court in the adjudication of the
matter on merits. The Trial Court shall endeavour to
proceed with the trial expeditiously.”
Shifa Ur Rehman
45. In the case of Shifa Ur Rehman, the Supreme Court found that she was
the president of the Alumni Association of Jamia Millia Islamia and had raised
substantial funds to finance the protests. In her case, the Supreme Court was of
the view that mere jurisdictional proximity or associative proximity with the
core conspirator would not be sufficient to deny bail. Accordingly, she was
granted bail by the Supreme Court.
Saleem Khan
46. In the case of Saleem Khan, the allegations against him were that he had
resorted to chakka jam and destruction of CCTV cameras. The Supreme Court
granted bail to Saleem Khan and observed as under, while distinguishing his
role from that of Umar Khalid and Sharjeel Imam:
“314. While the prosecution places reliance on his
alleged attendance at meetings preceding the escalation
of protests into chakka jams, the material does not
disclose that Saleem exercised control over either the
initiation of such meetings or formulation of their
outcomes. The attribution is largely derivative,Signature Not Verified
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reflecting execution of tasks discussed by others and
limited to coordination within the Chand Bagh-
Jafrabad cluster. The evidentiary foundation relied
upon, even if taken at its highest, does not presently
establish that Saleem possessed independent command
capacity or strategic discretion warranting ongoing
incarceration solely on the basis of his associative
presence at key locations.
315. The assertion that Saleem participated in the
destruction of CCTV cameras and in facilitating the
movement of protestors to designated sites raises
matters for trial, however, pre-trial detention cannot be
perpetuated merely because violent acts are alleged in
proximity to his presence, unless a direct and continuing
ability to influence or repeat such conduct is shown.
There is no material before this Court indicating that
he presently retains access to organisational resources,
communication networks, or mobilising power that
could enable interference with the administration of
justice. The legitimate concerns of the State can be
sufficiently guarded by supervision and tailored
restrictions.”
Meeran Haider
47. Meeran Haider was a member of the UAH Group along with other
students of Jamia Millia Islamia University. He was also the core member of
the Jamia Coordination Committee and had participated in clandestine
meetings in relation to protests itself. There was some evidence on record to
indicate that Meeran Haider had collected certain funds for the protest, etc.,
however, the Supreme Court observed that he was merely part of the
organisational structure and was not operating the same. Mere remote
participation was held to be insufficient to withhold bail. His role was also
found to be distinguishable from that of Umar Khalid and Sharjeel Imam.
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Shadab Ahmad
48. The Appellant-Athar Khan seeks parity with co-accused, Shadab
Ahmad. Both of them were members of the DPSG. The allegation qua Shadab
Ahmad was that he functioned as a local-level operator and had participated in
various meetings. The Supreme Court after considering the matter observed in
respect of Shadab Ahmad as under:
” 382. Upon a prima facie assessment of the material
relied upon by the prosecution, the role attributed to
Shadab Ahmad appears to be that of a site-level
executor associated with Chand Bagh and related
protest clusters, whose presence at certain meetings is
alleged to have facilitated operational coordination
following directions emanating from others. The
evidence presently placed on record does not disclose
that he occupied an authoritative position in
conceptualising the alleged conspiracy or that he
exercised independent control over its strategic
formulation. His alleged association with chakka jam
planning, while relevant to trial, does not by itself
sustain the continued deprivation of liberty at the pre-
trial stage in the absence of material showing
autonomous command or unilateral decision-making
authority.
383. The prosecution narrative stresses Shadab’s
attendance at late-night meetings and his participation
in conveying instructions to organisers of protest sites.
However, even taken at its highest, this depiction
situates him as a conduit for information and
coordination rather than as an architect of escalation.
The allegations neither establish that he devised the
strategy to engineer violence nor that he exercised
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alleged unlawful acts. The attributed conduct is
derivative and execution-centred, and the evidentiary
record does not presently disclose that he shaped or
altered the trajectory of the protests in a manner
warranting further custodial curtailment.
384. The State expresses apprehension that Shadab’s
enlargement on bail may enable reactivation of dormant
networks or interference with witnesses. However, there
is no cogent material to suggest that he presently retains
the organisational capacity or influence necessary to
mobilise individuals or resources independent of the
structures that, by the prosecution’s own account,
operated under a hierarchical command led by others.
The risks articulated can be effectively addressed by
imposing conditions restraining his interaction with co-
accused and witnesses, restricting participation in
assemblies concerning the subject matter, and ensuring
regular attendance before the trial court.
385. The Court remains mindful that the alleged acts
culminated in serious violence yet, the gravity of the
incident cannot be the sole criterion to perpetuate
detention when the individual’s attributed role is
operational rather than directive. The prosecution has
not demonstrated that Shadab’s custodial presence is
required for ongoing investigation or that further
evidence is contingent upon his continued
incarceration. In the absence of such necessity,
indefinite pre-trial detention would assume a punitive
character inconsistent with constitutional guarantees of
personal liberty under Article 21, particularly where the
alleged conduct is neither shown to be ongoing nor
presently repeatable in a manner jeopardising the
proceedings.”
49. Thus, the finding of the Supreme Court is that Shadab Ahmad is a local-
level facilitator.
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Gulfisha Fatima
50. The Appellant also seeks parity with co-accused, Gulfisha Fatima. She
is stated to have actively mobilised women protestors in North-East Delhi. She
provided them materials to attack police personnels and non-Muslims. She is
also stated to have received funds from co-accused, Tahir Hussain. However,
the Supreme Court observes on her role that she did not have any independent
command, resource control or strategic oversight over multiple protest sites.
While discussing the role of Gulfisha Fatima, the Supreme Court also mentions
about the role of the Appellant-Athar Khan in paragraph 411 of the judgment
as under:
“410. On 15.01.2020, Gulfisha Fatima is alleged to
have been among the key individuals who initiated a
women- and child-centric protest site at Seelampur near
Madina Masjid, in accordance with the alleged plan of
the conspirators. She, along with Devangana Kalita, is
stated to have attended a conspiratorial meeting
convened by Umar Khalid on 23.01.2020 at a
purportedly secret office located at Yameen House,
Seelampur. As noted hereinabove, in the said meeting,
Umar Khalid is alleged to have issued directions for
stockpiling red chilli powder, acid, bottles, and sticks. It
is further alleged that pursuant to the said meeting,
Gulfisha Fatima stockpiled chilli powder, wooden sticks
(dandas), acid, bottles, and other materials, and that she
used coded language to transmit directions of the
conspirators to the protesters. Statements of protected
witness “Echo” are relied upon in the charge-sheet in
support of these allegations.
411. On 17.02.2020, Gulfisha Fatima is alleged to have
attended a meeting held at the Chand Bagh protest site
during the night hours, which is stated to have been
attended by members of DPSG. According to the
charge-sheet, approximately twenty persons attendedSignature Not Verified
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the said meeting, including Gulfisha Fatima. At the said
meeting, a roadmap for execution of the final phase of
the alleged conspiracy namely, escalation of chakka
jams into disruptive chakka jams and the organisation
of violence and riots- is stated to have been outlined by
co-accused Athar Khan. The charge-sheet relies upon
electronic evidence to assert the presence of Gulfisha
Fatima at the said meeting.”
51. However, the Supreme Court observed that the role of Gulfisha Fatima
was similar to that of Natasha Narwal and Devangana Kalita, both of whom
had been granted bail, and accordingly, she was also granted bail.
52. In light of the above background and the findings of the Supreme Court
in respect of the various co-accused, the question that arises for consideration
is whether the Appellant deserves to be released on bail or not.
53. Firstly, the Appellant had not challenged the judgment dated 2nd
September, 2025 passed by the Co-ordinate Bench of this Court. Since his
appeal was not before the Supreme Court, his detailed role did not arise for
consideration in the judgment rendered in Gulfisha Fatima (Supra). As a
result, neither the allegations attributable to the Appellant nor the degree of his
alleged participation fell for consideration before the Supreme Court while
deciding the said matter.
54. Secondly, the statement of the protected witness, ‘Pluto’ under Section
164 of the CrPC shows that the Appellant had specifically mentioned about
violent protests leading to deaths and destruction of public property. As per the
case of the prosecution, the Appellant is also stated to have received funds from
co-accused, Tahir Hussain for the said protests.
55. The role of Athar Khan, which has in fact been more than prima facie
established from the chats recovered from Ovais Sultan Khan, would indicate
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that while others were suggesting that he resort only to non-violent protests, he
persisted with his objective of engaging in violent protests, to the extent of even
causing death. The fact that deaths were caused during the said riots cannot be,
therefore, a mere matter of co-incidence.
56. The statement of the protected witness, ‘Pluto’, where the Appellant is
stated to have clearly encouraged, exhorted and led others to cause destruction
through fire and to cause deaths through violence is an extremely serious
material. Releasing the Appellant on bail at this stage would in effect mean that
he could also threaten witnesses and could cause disruption in the trial as well.
Despite his team mates repeatedly asking him not to engage in violence, the
Appellant refused to obey the same. The Appellant, therefore, cannot be held
to be a mere local-level operator but one of the main conspirators who
conspired to cause deaths during the riots. Thus, the case of the Appellant is
clearly distinguishable from the other co-accused persons.
57. The decision in Gulfisha Fatima (Supra) has been recently considered
by the Supreme Court in Syed Iftikhar Andrabi (Supra) wherein the Supreme
Court observed as under:
“29. We have serious reservations on various aspects
of the judgment in Gulfisha Fatima, including
foreclosing the right of the two appellants to seek bail
for a period of one year. The judgment in Gulfisha
Fatima would have us believe that Najeeb is only a
narrow and exceptional departure from Section 43-
D(5) justified in extreme factual situations. It is this
hollowing out of the import of the observations in
Najeeb that we are concerned with.
30. No reading of Najeeb suggests that the mere passage
of time, divorced from all surrounding circumstances,
mechanically entitles an accused to release. The realSignature Not Verified
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concern addressed in Najeeb lay elsewhere. This Court
was concerned with the manner in which Section 43-
D(5) was, in practice, being deployed as an almost
conclusive basis for denial of bail notwithstanding
extraordinary delay in trial and prolonged
incarceration. It is precisely for that reason that this
Court observed that the ‘rigours’ of Section 43-D(5)
would ‘melt down’ where there is no likelihood of the
trial being completed within a reasonable time and
where the period of incarceration undergone has
already exceeded a substantial part of the prescribed
sentence. This Court in Najeeb cautioned that such an
approach was necessary to prevent provisions like
Section 43-D(5) from being used as ‘the sole metric for
denial of bail or for wholesale breach of the
constitutional right to speedy trial.’
31. In K.A. Najeeb, a three-Judge Bench of this Court
was clear and unequivocal in holding that once it is
obvious that a timely trial would not be possible and the
accused has suffered incarceration for a significant
period of time, the courts would ordinarily be obligated
to enlarge the accused on bail. We have already
extracted supra paragraph 17 of the said judgment
where it has been clearly stated that the presence of
statutory restrictions like Section 43D(5) of the UAP Act
per se does not oust the ability of the constitutional
courts to grant bail on grounds of violation of Part III
of the Constitution. Whereas at the commencement of
the proceedings, the courts are expected to appreciate
the legislative policy against grant of bail but the rigors
of such provisions will ‘melt down’ where there is no
likelihood of the trial being completed within a
reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the
prescribed sentence. In the facts of that case, this Court
observed that it was conscious of the fact that the
charges levelled against the accused were grave and a
serious threat to societal harmony and had it been theSignature Not Verified
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case at the threshold, perhaps the Court would have
outrightly rejected such a prayer. However, keeping in
mind the duration of incarceration and the unlikelihood
of the trial being completed in the near future, the
accused had to be enlarged on bail.
32. The reasoning first in Gurwinder and then in
Gulfisha Fatima, appears to proceed against
something invented and then destroyed. We are
constrained to reiterate that Najeeb was not warning
courts against treating incarceration as the sole factor
favouring bail. Instead, it was warning against
treating the statutory embargo as the sole factor
justifying continued detention by ignoring
constitutional principles. Therefore, the subsequent
reading that Najeeb does not create an automatic
entitlement to bail on account of delay answers a
proposition that Najeeb itself never advanced.
xxxx
35. The often invoked phrase ‘bail is the rule and jail is
the exception’ is not merely an empty statutory slogan
flowing from the CrPC as Gurwinder has stated. It is a
constitutional principle flowing from Articles 21 and 22
of the Constitution and the presumption of innocence
which is the cornerstone of any civilised society
governed by the rule of law. Statutes may undoubtedly
calibrate the manner in which that principle is applied,
particularly in cases involving national security or
terrorist offences for which the UAP Act is meant, but
those cannot altogether invert the constitutional
relationship between liberty and detention. The
statutory embargo of Section 43-D(5) must remain a
circumscribed restriction that operates subject to the
guarantee of Articles 21 and 22 of the Constitution.
Therefore, we have no manner of doubt in stating that
even under the UAP Act, ‘bail is the rule and jail is the
exception’; of course, in an appropriate case, bail can
be denied having regard to the facts of that particularSignature Not Verified
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case.
36. As we have noted above, several subsequent
decisions of this Court, rendered after Gurwinder, have
continued to apply the approach articulated in Najeeb
in granting bail under the UAP Act on grounds of
prolonged incarceration, gross delay in conclusion of
trial, and the absence of any realistic possibility of the
trial concluding in the near future.
37. The logic underlying all these judgments traces
back to Najeeb, which is now the law of the land
governing the grant of bail under the UAP Act in a
situation of prolonged detention. In that context, it is
noteworthy that while Gulfisha Fatima relied on
Gurwinder to adopt a narrower reading of Najeeb,
neither Gulfisha Fatima nor Gurwinder engage with
this subsequent line of authority of case law.
38. Thus it is clear beyond doubt that the preference
for bail, or the often invoked principle ‘bail is the rule
and jail is the exception’ flows from the constitutional
primacy of personal liberty under Article 21 and,
therefore, cannot be displaced by legislation.
39. In that spirit, we make it clear that Najeeb is
binding law entitled to the protection of stare decisis.
It cannot be diluted, circumvented, or disregarded by
trial courts, High Courts or even by Benches of lower
strength of this Court.”
58. However, after the judgment in Syed Iftikhar Andrabi (Supra), the
Supreme Court vide order dated 22nd May, 2026 passed in Tasleem Ahmed
(Supra) has referred the tests under Section 43D(5) of the UAPA to a larger
Bench. Vide the said order, bail was granted to two co-accused persons i.e.,
Tasleem Ahmed and Abdul Khalid Saifi @ Khalid Saifi. The relevant portion
of the said order reads as under:
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“24. Having regard to the importance of the issue, we
are of the view that the questions requiring
consideration need not be confined to the correctness of
any one decision. The controversy raises a broader
question concerning the manner in which
constitutional courts are to approach bail where
prolonged incarceration is asserted in prosecutions
governed by special statutes imposing restrictive bail
conditions. In this background it would be imperative
or in other words necessary for the appropriate bench
that may be constituted by the Hon’ble Chief Justice of
India, to clarify or expound the position of law laid
down in K.A. Najeeb’s case, particularly in the
backdrop of the rigour of 43D (5) which imposes
restriction consciously and has received the assent of
the Parliament, which obviously was brought in
keeping in mind the valuable right enshrined in Article
21 of the Constitution of India.
xxxx
27. 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 conclude
immediately; 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.”
59. Recently, the Supreme Court, in State of Punjab v. Balraj Singh @
Billa, 2026 INSC 618, after taking into consideration the order dated 22nd
May, 2026 passed in Tasleem Ahmed (Supra), in the context of a matter
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pertaining to the Narcotic Drugs and Psychotropic Substances Act, 1985,
observed as under:
“22. However, we note that recently this Court in
Tasleem Ahmed v. State Govt. of NCT of Delhi has
referred the question concerning the approach of
constitutional Courts in bail matters under special
statutes, where “Article 21, prolonged incarceration
and statutory restrictions intersect”. In view of the said
reference, we do not wish to deliberate on this issue
further, save and except that in our view paramount
consideration is nothing but interest of justice for all.
Should there be any conflict between the sovereignty
of country and personal liberty, undoubtedly, the
former shall prevail, particularly, when a war is waged
against the nation, be it in the form of supply of drugs,
which vitally affects the national economy and health
of the people.”
60. Coming to the general principles for grant of bail, the Supreme Court, in
the decision in State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, has
elaborately discussed the factors which are required to be borne in mind by the
Court while adjudicating an application seeking grant of bail. The relevant
portion of the said judgment reads as under:
“18. It is well settled that the matters to be considered
in an application for bail are (i) whether there is any
prima facie or reasonable ground to believe that the
accused had committed the offence; (ii) nature and
gravity of the charge; (iii) severity of the punishment
in the event of conviction; (iv) danger of the accused
absconding or fleeing, if released on bail; (v)
character, behaviour, means, position and standing of
the accused; (vi) likelihood of the offence being
repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, ofSignature Not Verified
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course, of justice being thwarted by grant of bail [see
Prahlad Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280
: 2001 SCC (Cri) 674] and Gurcharan Singh v. State
(Delhi Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41
: AIR 1978 SC 179] ]. While a vague allegation that the
accused may tamper with the evidence or witnesses may
not be a ground to refuse bail, if the accused is of such
character that his mere presence at large would
intimidate the witnesses or if there is material to show
that he will use his liberty to subvert justice or tamper
with the evidence, then bail will be refused. We may also
refer to the following principles relating to grant or
refusal of bail stated in Kalyan Chandra Sarkar v.
Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri)
1977] : (SCC pp. 535-36, para 11)
“11. The law in regard to grant or refusal of bail
is very well settled. The court granting bail should
exercise its discretion in a judicious manner and
not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence
and elaborate documentation of the merit of the
case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any order
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also before
granting bail; they are:
(a) The nature of accusation and the
severity of punishment in case of conviction
and the nature of supporting evidence.
(b) Reasonable apprehension of tampering
with the witness or apprehension of threat
to the complainant.
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(c) Prima facie satisfaction of the court in
support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh [(2002) 3
SCC 598 : 2002 SCC (Cri) 688] and Puran
v. Rambilas [(2001) 6 SCC 338 : 2001 SCC
(Cri) 1124] .)”
61. The decision in Amarmani Tripathi (Supra) was followed by the
Supreme Court in the decision in Prasanta Kumar Sarkar v. Ashis Chatterjee,
(2010) 14 SCC 496 wherein the Supreme Court further elaborated upon the
factors required to be borne in mind by a Court while deciding bail applications.
The relevant portion of the said decision reads as under:
“9. We are of the opinion that the impugned order is
clearly unsustainable. It is trite that this Court does not,
normally, interfere with an order passed by the High
Court granting or rejecting bail to the accused.
However, it is equally incumbent upon the High Court
to exercise its discretion judiciously, cautiously and
strictly in compliance with the basic principles laid
down in a plethora of decisions of this Court on the
point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the accused
had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; andSignature Not Verified
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(viii) danger, of course, of justice being
thwarted by grant of bail.
[See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC
21 : 2005 SCC (Cri) 1960 (2)] (SCC p. 31, para 18),
Prahlad Singh Bhati v. NCT of Delhi [(2001) 4 SCC 280
: 2001 SCC (Cri) 674] , and Ram Govind Upadhyay v.
Sudarshan Singh [(2002) 3 SCC 598 : 2002 SCC (Cri)
688] .]”
The above principles for bail, as set out in the extracted decisions of the
Supreme Court, are so well entrenched that they do not need reiteration or
repetition.
Conclusion
62. In the opinion of this Court, the Appellant, having not challenged the
earlier bail rejection orders, and his role being prima facie established in
causing deaths through violent acts as also in the destruction of private and
public property does not satisfy the test under Section 43D(5) of the UAPA for
being released on bail. 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.
63. Accordingly, this Court is not inclined to grant bail to the Appellant. The
impugned order is, therefore, upheld, and the present appeal stands dismissed.
Pending applications, if any, are also disposed of.
64. Needless to add, the observations made herein are solely for the purpose
of deciding the bail application of the Appellant and shall not be construed as
an expression on the merits of the case. The same shall not influence theSignature Not Verified
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proceedings before the Trial Court in any manner.
65. Copy of the charge-sheets handed to the Court by the ld. Counsel for the
Respondent in a pen drive shall be kept in the safe custody of the Registry in a
sealed envelope.
PRATHIBA M. SINGH
JUDGEMADHU JAIN
JUDGE
JULY 07, 2026
Dj/CkSignature Not Verified
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