Delhi riots case: Gulfisha Fatima did not exercise independent command, resource control over multiple protest sites, says SC

New Delhi, Jan 5 (PTI) The Supreme Court on Monday said activist Gulfisha Fatima, an accused in the 2020 Delhi riots case, did not exercise independent command, resource control, or strategic oversight over multiple protest sites during the agitation against the Citizenship (Amendment) Act.

While granting bail to Fatima, a bench of Justices Aravind Kumar and N V Anjaria said she stands at different footing as compared to the alleged masterminds Umar Khalid and Sharjeel Imam.

"The allegation that Gulfisha Fatima mobilised local women and coordinated protest-site logistics, though relevant to the prosecution's case, does not presently disclose that she exercised independent command, resource control, or strategic oversight over multiple protest sites.

"The prosecution itself asserts that directions were conveyed to her by others higher in the asserted hierarchy. In these circumstances, this Court finds that the level of attributed agency and control does not justify continued incarceration once the investigative purpose stands substantially fulfilled," the bench said.

The apex court said apprehension that Fatima's release may lead to interference with witnesses or revival of the alleged operational network is considerably weakened by the absence of material suggesting that she retains any autonomous capacity to mobilise persons or resources in the current circumstances.

"It is undisputed that the structures relied upon by the prosecution both formal or informal no longer exist in their asserted form, and the appellant's present ability to exert influence is neither pleaded with specificity nor supported by contemporaneous material.

"The imposition of stringent conditions can sufficiently safeguard against any residual risk," it said.

The top court said the gravity of the incidents, though serious, cannot eclipse the constitutional demand for individualised assessment of necessity in pre-trial detention.

"Prolonged incarceration premised solely on the seriousness of allegations, absent a proximate and continuing nexus between the appellant and present threats to the administration of justice, would amount to a punitive measure inconsistent with settled principles.

"In view of her alleged executory role and absence of demonstrable present capacity to influence proceedings, continued custody does not meet the threshold of necessity," the bench said.

The apex court said Fatima has remained in custody for a substantial period, and there is no material to indicate that her release would pose an irremediable risk that cannot be addressed by restrictive conditions.

"The law does not envisage incarceration as a measure of deterrence at the pre-trial stage, particularly where the individual concerned is a woman with no prior criminal antecedents and whose alleged actions stem from a ground-level facilitating role.

"The allegations attributed to the Appellant i.e. assignment of protest sites, coordination of local mobilisation, participation in meetings of DPSG (Delhi Protest Support Group) members, and logistical execution of protest activities are substantially identical to the allegations against co-accused Natasha Narwal and Devangana Kalita, who allegedly conveyed DPSG directions to the Appellant and jointly coordinated the Seelampur/Jafrabad protest sites," the bench said.

It said once bail has been granted to co-accused who stand on the same factual and legal footing in terms of alleged roles, meetings, communications, and purported execution on the ground, continued incarceration of Fatima violates the settled principle of parity.

The court said in the absence of any distinguishing material against Fatima, denial of bail would constitute hostile discrimination vis-a-vis similarly situated co- accused, offending Article 14 and the doctrine of parity.

While refusing to release Khalid and Imam, the bench granted bail to Fatima, Meeran Haider, Shifa Ur Rehman, Mohd. Saleem Khan and Shadab Ahmad on executing a personal bond in the sum of Rs 2 lakh with two local sureties of the like sum to the satisfaction of the trial court.

"The appellants shall remain within the National Capital Territory of Delhi and shall not leave its territorial limits without prior permission of the trial court.

"Any request for travel shall disclose reasons and such prayer/request shall be considered by the trial court strictly on its merits," it said.

The February 2020 riots in northeast Delhi left 53 people dead and more than 700 injured.

The violence erupted during widespread protests against the Citizenship (Amendment) Act (CAA) and the National Register of Citizens (NRC). PTI PKS KVK KVK