Marking four years since the February 2020 Delhi riots, the quest for bail and even the basic rightful necessities of the accused remains delayed. 27-year-old Athar Khan has been imprisoned for more than 40 months now, over allegations of “conspiracy” in Delhi violence.
Instances of alleged torture, harassment, poor health conditions, delay in granting facilities appealed for, etc have been reported over almost four years of incarceration.
Who is Athar Khan and what is his “crime”?
Athar Khan is an activist from Chand Bagh, New Delhi, currently detained and under trial on charges of “abetting” communal riots in northeast Delhi on February 23, 2020.
He was actively involved in protests demanding justice including the Nirbhaya movement of 2012. Later, he started to participate in electoral politics at the grassroots level.
He had campaigned for Kapil Mishra (former leader of Aam Aadmi Party) and had worked with him too. However, Mishra joined the Bharatiya Janata Party, not before he was disqualified as an MLA under the anti-defection law in 2019, and had given an incendiary speech inciting the February 2020 Delhi Pogrom, which resulted in Khan’s incarceration.
Najmuddin, who visits his nephew Khan in jail and handles all the legal proceedings, said that Khan had three cases on him. After the protests against the controversial Citizenship (Amendment) Act, 2019, Athar along with the other 17 accused were arrested by the Special Cell of the Delhi Police and charged under the stringent Unlawful Activities (Prevention) Act (UAPA). The accused were also charged with various other sections of the Indian Penal Code (IPC) In the most crucial FIR 59/2020, for “overarching conspiracy”.
Apart from that, Khan was accused in FIR 60/2020 for being part of the mob which murdered Head Constable Ratan Lal during the ‘Pogrom’; and in FIR 163/2020 for being part of the mob which looted a showroom. However, in both the cases, the prosecution has failed to prove that he was physically present when the incidents occurred.
“He was granted bail in both cases on account of parity and now remains incarcerated under FIR 59/2020,” Najmuddin said.
Talking about the developments in the court Najmuddin said that he was granted bail in the other two cases, as for FIR No. 59, he was denied bail by the sessions court and hence moved the High Court. The High Court bench had previously held the hearing for 8-10 months before the judges were transferred.
“Now a new bench is formed, everyone’s first hearing is done and Athar’s first hearing is on 31st January,” said Najmuddin.
Among the 18 accused, 6 have been granted bail — Safoora Zargar, Faizan Khan, Ishrat Jahan, Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha.
As for the rest of the 12 accused, the hearing of the 9 among them — Sharjeel Imam, Meeran Haider, Gulfishan Fatima, Athar Khan, Shifa-ur-Rahman, Mohammad Saleem Khan, Shadab Ahmad, Salim Malik, and Khalid Saifi — is still going on in High court, the other 2 are in sessions court (Tahir Hussain, and Taslim Ahmad), while Umar Khalid’s hearing is still ongoing in Supreme Court.
The other three men arrested in connection with FIR No. 59, were released on bail even before the charge sheet was filed — Mohammad Danish, Mohammad Ilyas, and Mohammad Parwez Ahmad.
Najmuddin said, “It has been over 10 months since his video call facility was stopped and it’s still not resumed. The jail administration said that they cannot do anything unless the court interferes.”
‘Falsely framed and incriminated’
Khan has been denied e-mulaqat over accusations he assertively claimed he was falsely framed. Khan was recently shifted from Tihar Jail to Mandoli Jail complex, which is closer to Karkardooma court where his hearing is held. Khan’s video calls were stopped in March 2023, citing a “violation of Delhi prison rules”.
As per the Delhi jail rules circular dated 26.12.2022, para no.3, ‘E-Mulakat facility will be subject to maintaining good conduct in Jail. Thus, the inmate who violates jail rule(s) or is found to misuse this facility or in whose case this facility is found to be misused by the family member/spouse of the inmate will not be eligible for this facility. Further, if the Superintendent has sufficient reasons to believe that the inmate is not entitled for the said facility, he may decline for the same with recorded reasons’.
An application was filed in the sessions court a month later, seeking weekly e-mulaqat. The court issued a notice to the office of Mandoli Jail Superintendent, who sent a reply on June 7th, 2023 with attached documents.
The court took notice of the jail administration’s reply which cited two reasons for stopping his e-mulaqat facility in April. The document issued by the Deputy Superintendent, accessed by The Observer Post read, “The above said inmate (Athar Khan) has violated the Delhi Prison Rules and two punishment tickets have been made against the accused Athar Khan and in April his e-Mulakat facility was stopped as per above circular.”
In the photocopies of the punishment enclosed in the response, the jail administration cited one of the reasons as ‘Khan had gone on hunger strike in jail’.
“On March 22, 2023, They all (15 inmates including Athar Khan) refused to eat dinner (Hunger strike) and also forced the whole ward not to eat Dinner. After that a punishment ticket was recorded against the above said inmate. Such act and behavior is punishable according to Delhi Prison Rule. Hence, 15 days mulaqat/e-mulaqat facility be stopped subject to the appraisal of Hon’ble Court,” it said.
However, Khan’s uncle, Najmuddin had denied the allegations saying ‘Athar had no idea about the hunger strike’. “There will be different groups inside the jail, but there’s no one like us. We are political prisoners and not criminals. I had no idea about who did it or even when it happened. But my name has been included in the list of the accused,” Khan told Najmuddin.
The second reason provided was that ‘he had removed his underwear in front of a lady constable during checking’. “He (Khan) misbehaved during the searching/checking and he removed his complete clothes and came out nude from the checking room in front of all the staff including a lady constable of CRPF. Hence, his 30 days telephone facility and 30 days mulaqat/e-mulaqat facility be stopped subject to the approval of Hon’ble Court,” it read.
Najmuddin quotes Khan as saying, “I came back from the court to the jail. The jail administration asked me to take off my clothes for checking. I took them off. Then they asked me to take off my underwear, which I refused. Later, they took me to the jailer, beat me up inside the prison and abused me. Enraged, I took off my underwear, when suddenly the lady constable came.”
Moreover, Najmuddin told The Observer Post that Khan had apologized to the lady constable, and has also written an apology letter to the jail administration regarding the alleged accidental event. He further clarified saying, “I never intended to do it in front of the lady constable. It was merely an accident.”
Nonetheless, the jail administration interpreted the whole matter as per their own and stopped the video conferencing facility, Najmuddin alleged. Accordingly, taking note of the reasons cited by the jail administration, the court on June 9, 2023, said, “In view of the report filed by the Jail Superintendent, the present application moved on behalf of applicant/accused Athar Khan for E-Mulaqat stands disposed off.”
Najmuddin alleged that such instances of asking to remove underwear for checking is not supposed to happen as per law, but has happened with Athar before too. “Talaashi k naam pe badtameezi hothi hai (They trouble him in the name of frisking)”, he alleged.
“Earlier, when he was just arrested, they had asked him to take off his undergarments. We had filed an application at the time, but did not get a clear answer on it. This is the second time this has happened.” Najmuddin accused the jail administration of incriminating him to cause him trouble for no reason simply. Possibly due to Khan’s Muslim identity, he suspects.
Another application was filed recently seeking weekly e-mulakat. On January 15, 2024, the Additional Sessions Judge said, “Let the application be forwarded to the concerned Jail Superintendent to consider the prayer of the applicant, as per Jail Manual. Copy of this order be sent to the concerned Jail Superintendent for information and compliance”. The response is awaited.
Najmuddin often noted the prolonged wait for the response to any application. Recalling past instances, he said, “We had applied for a petition seeking hot water for Athar during winters about 2-3 times. It takes more than two months to finally get a response to it and they wouldn’t be able to get it then”.
On a positive note, Khan’s health condition is better and stable, now that they have opened a clinic here in Mandoli jail too. Previously, he had to travel some distance to get the medication for his piles, Najmuddin added.
Najmuddin also said that his family back home are still mentally disturbed, adding “Hame kuch samajh nahi aaraha, hum ajeeb situation mai hai (We don’t understand anything, we are in an odd situation).”