UAPA Bail: Parity Denied Where Prior Rejection Has Attained Finality and Material Shows “Core Conspirator” Role Linked to Riot Deaths

Case: ATHAR KHAN v. STATE OF NCT OF DELHI
Citation: 2026 DHC 5408-DB
Court: Delhi High Court
Date: 07-07-2026
Coram: Prathiba M. Singh, J.; Madhu Jain, J.

1. Introduction

This appeal arose from the prosecution stemming out of the North East Delhi riots of 23–25 February 2020. The appellant, Athar Khan, sought regular bail in FIR No. 59/2020 (PS Crime Branch, Delhi), which—after investigation—invoked a wide array of IPC offences and, crucially, provisions of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), including the restrictive bail bar under Section 43D(5).

The appellant’s first bail rejection (12.10.2022) was affirmed by a coordinate bench of the Delhi High Court in Athar Bholu Khan v. State Of Nct Of Delhi & Ors. (02.09.2025). Several co-accused later obtained bail from the Supreme Court in Gulfisha Fatima v. State (Govt. of NCT of Delhi), 2026 INSC 2, prompting the appellant to file a second bail application on grounds of “parity” and prolonged custody. The trial court dismissed that application (29.01.2026), and the present appeal challenged that dismissal.

2. Summary of the Judgment

The Delhi High Court dismissed the appeal and upheld the trial court’s refusal of bail. It held that:

• The appellant did not challenge the earlier High Court bail rejection (02.09.2025), and the Supreme Court did not examine his role in Gulfisha Fatima; therefore, he could not automatically derive benefit from bail granted to others.
• The material on record—particularly the protected witness “Pluto” (Section 164 CrPC statement) and corroborative WhatsApp messages—prima facie attributed to the appellant an exhortation towards violence and deaths, placing him closer to a “core conspirator” than a field-level executor.
• Given the seriousness of allegations (including linkages to deaths), witness protection concerns, and the statutory bar of Section 43D(5) UAPA, bail was not warranted.

The Court clarified that its observations were only for bail and would not influence the trial.

3. Analysis

3.1 Precedents Cited (and Their Influence)

(a) Athar Bholu Khan v. State Of Nct Of Delhi & Ors. (Delhi High Court, 02.09.2025)

This was central to the Court’s approach. The coordinate bench had previously analysed the appellant’s alleged participation in protest-linked WhatsApp groups (DPSG/UAH/CAB Team), meetings in Chand Bagh, and coordination around disabling CCTVs and mobilization. Since the appellant did not challenge that decision before the Supreme Court, the High Court treated the earlier findings as having practical finality in the appellant’s case at the bail stage—especially regarding the application of Section 43D(5).

The judgment thus reinforces a procedural reality: while successive bail applications are permissible upon change in circumstances, a litigant who did not carry an adverse bail finding upward may face an intensified burden to show a truly material change, not merely reliance on outcomes in other persons’ appeals.

(b) Gulfisha Fatima v. State (Govt. of NCT of Delhi), 2026 INSC 2

The Supreme Court in Gulfisha Fatima performed an accused-specific assessment and drew a line between: “core conspirators/architects” (e.g., Umar Khalid, Sharjeel Imam—bail denied) and “field-level/site-level operators” (e.g., Saleem Khan, Meeran Haider, Shadab Ahmad, Gulfisha Fatima—bail granted).

The Delhi High Court used Gulfisha Fatima not as a parity-triggering mandate, but as a framework—asking where the appellant falls on that spectrum. It emphasised that the Supreme Court itself (in para 411 of Gulfisha Fatima) recorded an allegation that at a 17.02.2020 Chand Bagh meeting the roadmap for “final phase” escalation was outlined by co-accused Athar Khan. The High Court treated this as consistent with the prosecution portrayal of the appellant as a leading instigator.

(c) Syed Iftikhar Andrabi v. National Investigation Agency, Jammu, 2026 INSC 503

The High Court noted that Syed Iftikhar Andrabi expressed “serious reservations” on aspects of Gulfisha Fatima and reaffirmed that K.A. Najeeb remains binding on constitutional bail discretion where prolonged incarceration and trial delay threaten Article 21.

However, the High Court did not treat Syed Iftikhar Andrabi as creating an automatic release rule; it still proceeded on the statutory inquiry under Section 43D(5) and the case-specific risk assessment (witness influence/flight risk), concluding that the appellant’s alleged link to exhortations about deaths and arson made him ineligible at this stage.

(d) Tasleem Ahmed v. State of Govt. of NCT of Delhi (Supreme Court order dated 22.05.2026)

The High Court recorded that Tasleem Ahmed referred broader questions on the intersection of Article 21, prolonged incarceration, and statutory restrictions to a larger bench, and granted interim bail to the appellants there. Yet, the High Court did not view that interim approach as controlling on the appellant’s facts—especially given the High Court’s view that the appellant was not similarly placed and the presence of material suggesting a “core conspirator” role.

(e) State of Punjab v. Balraj Singh @ Billa, 2026 INSC 618

This was cited to show the Supreme Court’s caution after the reference in Tasleem Ahmed. The High Court used it mainly to acknowledge that the law is in a moment of doctrinal churn on “special statute bail”, but it continued to apply the extant statutory and conventional bail tests.

(f) Conventional bail principles: State Of U.P Through Cbi v. Amarmani Tripathi . (2005) 8 SCC 21 and Prasanta Kumar Sarkar (S) v. Ashis Chatterjee & Anr. (S), (2010) 14 SCC 496

The High Court reproduced the familiar multi-factor test (prima facie case, gravity, punishment severity, absconding risk, likelihood of repetition, witness tampering, etc.). These cases functioned as the general-law backdrop to the UAPA-specific restriction under Section 43D(5).

The High Court also referenced the chain of supporting authorities within Amarmani Tripathi and Prasanta Kumar Sarkar (S), including: Prahlad Singh Bhati v. NCT, Delhi, Gurcharan Singh v. State (Delhi Admn.), Kalyan Chandra Sarkar v. Rajesh Ranjan, Ram Govind Upadhyay v. Sudarshan Singh, and Puran v. Rambilas, to underscore that bail discretion must remain reasoned and sensitive to witness intimidation and justice thwarting.

3.2 Legal Reasoning

(i) Second bail, “change of circumstance,” and the appellant’s litigation choices

The Court treated the appellant’s non-challenge of the 02.09.2025 High Court judgment as critical context: the Supreme Court’s individualized grant/denial of bail in Gulfisha Fatima did not adjudicate the appellant’s role, and thus could not be read as implicitly diluting the prior prima facie findings against him. In effect, the Court accepted that “parity” is not a substitute for a role-based analysis—especially where an earlier decision (inter partes) has already assessed the same accused’s role and attracted Section 43D(5).

(ii) Section 43D(5) UAPA and the “prima facie true” threshold

The judgment applies the core statutory idea: if, on the materials, there are reasonable grounds for believing the accusation is prima facie true, bail is barred. The High Court emphasized that, at this stage, it would not conduct a trial-like assessment of contradictions; it would ask whether the materials, taken at face value, indicate the forbidden threshold is crossed.

(iii) Why the appellant was treated as “core conspirator” rather than “field-level operator”

The Court’s decisive factual anchor was the protected witness “Pluto” (Section 164 statement) attributing to the appellant the remark (as translated/quoted) that Delhi must be shaken and that “until 100–200 people are not killed” the issue would not be resolved—along with assertions of preparation (weapons, petrol) and resource sufficiency. The Court found corroboration in WhatsApp exchanges where another person (Ovais Sultan Khan) allegedly warned the appellant against inciting violence and stated that the protests would remain non-violent.

On that basis, the Court reasoned:

• Material suggesting intent/encouragement of deaths elevates the role from logistics/execution to directive escalation.
• If evidence “points to” a role in deaths, the accused is closer to a “core conspirator,” a category for which Gulfisha Fatima itself upheld denial of bail in analogous contexts (e.g., Umar Khalid, Sharjeel Imam).
• Given the protected witness ecosystem and the scale of the trial (880+ witnesses), witness influence concerns were treated as substantial.

(iv) Prolonged custody and Article 21 arguments

Although the appellant highlighted approximately six years of custody and the large witness list, the Court did not treat delay alone as overriding Section 43D(5) in the appellant’s circumstances, particularly because it perceived the appellant’s role as grave and witness-risk as high. The Court acknowledged the broader Supreme Court debate (through Syed Iftikhar Andrabi and Tasleem Ahmed) but held that even on normal bail factors, the appellant failed due to flight risk and witness influence apprehensions.

3.3 Impact

• Parity is role-sensitive, not outcome-sensitive: The ruling operationalizes a clear message for UAPA bail: bail to co-accused in a connected prosecution does not, by itself, create parity unless the applicant’s attributed role and evidentiary posture are truly comparable.
• Prior bail findings matter more if left unchallenged: While not framed as res judicata, the judgment practically strengthens the weight of earlier prima facie determinations (especially when affirmed on appeal) in subsequent bail rounds, unless the applicant shows a substantial change.
• “Death-linked” instigation evidence becomes a categorical differentiator: The Court suggests that material indicating exhortation to killings can move an accused from “field-level” to “core conspirator,” tightening the Section 43D(5) noose even where other accused obtain bail.
• Protected witness + digital chats as corroborative matrix at bail stage: The Court’s approach indicates that, at the bail stage, courts may treat a protected witness statement under Section 164, when supported by contemporaneous digital communications, as sufficient to sustain the prima facie threshold despite defence claims of contradiction.
• Interplay with evolving Supreme Court doctrine remains open: By noting Tasleem Ahmed’s reference and Syed Iftikhar Andrabi’s reaffirmation of K.A. Najeeb, the judgment implicitly signals that the law is unsettled at the highest level; nevertheless, trial/High Courts may continue to deny bail where they perceive “core conspirator” indicators and witness-risk concerns.

4. Complex Concepts Simplified

• Section 43D(5) UAPA: A restrictive bail clause. If the court finds “reasonable grounds” to believe the accusation is prima facie true, it must deny bail (subject to constitutional discretion in extreme delay scenarios discussed in Supreme Court jurisprudence).
• “Prima facie true”: Not proof beyond reasonable doubt. It means the materials, taken at face value at this stage, show a credible case that the accused committed the alleged offences.
• Section 161 vs Section 164 statements: Section 161 statements are given to police during investigation; Section 164 statements are recorded before a magistrate and often carry greater procedural solemnity. Contradictions can matter at trial, but at bail stage courts often avoid deep credibility adjudication.
• Protected witness: A witness whose identity is kept confidential for safety. Courts can still rely on the substance of such statements at bail stage, particularly where corroboration exists.
• Parity in bail: The idea that similarly situated accused should receive similar relief. Courts require similarity in role, evidence, and risk profile, not merely similarity in charges.
• Core conspirator vs field-level operator: A “core conspirator” is portrayed as an architect/strategist who shapes escalation; a “field-level operator” is portrayed as executing tasks without strategic command. This classification was expressly discussed in Gulfisha Fatima and is used here to deny parity.

5. Conclusion

ATHAR KHAN v. STATE OF NCT OF DELHI strengthens a restrictive, role-driven approach to UAPA bail in riot-conspiracy prosecutions: an accused cannot secure bail purely on parity with co-accused who succeeded before the Supreme Court when (i) his own prior bail rejection has been affirmed and left unchallenged, and (ii) the record contains material portraying him as a “core conspirator,” particularly where statements and digital chats suggest instigation toward killings and arson. The decision underscores that, notwithstanding ongoing Supreme Court debates on prolonged incarceration under special statutes, High Courts may continue to deny bail where Section 43D(5) is found to be attracted and witness-risk concerns are pronounced.