Delhi HC Rejects Bail to Athar Khan in North-East Delhi Riots Case, Finds Prima Facie Role in Deaths

A Division Bench of the Delhi High Court dismissed the bail appeal of Athar Khan, accused No. 15 in the North-East Delhi riots FIR, holding his role in the conspiracy prima facie extended to causing deaths.

A Division Bench of the Delhi High Court, comprising Justice Prathiba M. Singh and Justice Madhu Jain, on 7 July 2026 dismissed the criminal appeal filed by Athar Khan challenging the rejection of his second regular bail application in Sessions Case No. 163/2020 arising from FIR No. 59/2020, registered at PS Crime Branch, Delhi. The FIR relates to the North-East Delhi riots of 23rd, 24th and 25th February 2020, in which 53 persons died and over 1,500 properties were damaged. The bench found that Khan's role went beyond that of a local-level facilitator and that prima facie material — including protected-witness statements and WhatsApp messages — linked him to actively encouraging deaths during the riots. The statutory embargo under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 was held to be squarely applicable.

The Proceedings Before the High Court

Khan was arrested on 2nd July 2020 and arrayed as Accused No. 15 in the main charge-sheet dated 16th September 2020. The prosecution charged him under a wide range of provisions including Section 120B read with multiple sections of the Indian Penal Code, 1860, Sections 13, 16, 17 and 18 of the 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.

His first regular bail application before the Trial Court was rejected on 12th October 2022. That rejection was upheld by a Co-ordinate Bench of the Delhi High Court on 2nd September 2025 in CRL.A. 677/2022 — a judgment that disposed of nine appeals by nine accused persons arising from the same FIR. Khan did not challenge that judgment before the Supreme Court.

Following the Supreme Court's judgment in Gulfisha Fatima v. State (Govt. of NCT of Delhi), 2026 INSC 2, rendered on 5th January 2026, in which five of the nine co-accused received bail, Khan moved a fresh application before the Trial Court on 13th January 2026, seeking parity with those co-accused. The Additional Sessions Judge-03, Karkardooma Court, Delhi dismissed that application on 29th January 2026, holding that the prima facie finding against Khan made in October 2022 had been upheld by the High Court and had attained finality since he had not approached the Supreme Court. The present appeal under Section 21(4) of the National Investigation Agency Act, 2008 read with Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenged that second dismissal.

The Legal Issue: Parity with Co-Accused and the Scope of Section 43D(5) UAPA

The central question was whether Khan could claim parity with co-accused persons — particularly Shadab Ahmad and Gulfisha Fatima — who had been granted bail by the Supreme Court in Gulfisha Fatima. Counsel for Khan, Mr. Arjun Dewan, argued that Khan was merely a local-level facilitator, that the protected witness “Pluto's” statements contained clear contradictions between his Section 161 and Section 164 CrPC recordings, and that the WhatsApp chats attributed to Khan related only to non-violent protests when read in context. Counsel relied on the Supreme Court's May 2026 order in Tasleem Ahmed v. State Govt. of NCT of Delhi, SLP (Crl.) No. 2867/2026, where two similarly placed accused with long periods of incarceration were granted interim bail, and on Syed Iftikhar Andrabi v. National Investigation Agency, Jammu, 2026 INSC 503.

Khan had been in custody for approximately six years at the time of the appeal. There were more than 880 witnesses to be examined in the trial.

Additional Solicitor General Mr. S.V. Raju, for the State, countered that the Co-ordinate Bench's findings of 2nd September 2025 had attained finality qua Khan since he had not challenged them. The ASG emphasised a specific statement attributed to Khan by protected witness “Pluto” — that until 100-200 people were killed, the issues would not be resolved — and argued this distinguished him from every co-accused who had been granted bail.

How the Bench Reasoned

The bench began by surveying the Supreme Court's individual assessments in Gulfisha Fatima of each accused person whose bail had been considered. That judgment drew a clear distinction between core conspirators and field-level operators. Bail was denied to Umar Khalid and Sharjeel Imam, who were found to be architects of the alleged conspiracy. Bail was granted to Shadab Ahmad, Salim Khan, Meeran Haider, Shifa-Ur-Rehman and Gulfisha Fatima, each found to be operational rather than directive actors.

The bench noted the specific passage in Gulfisha Fatima at paragraph 411, where the Supreme Court itself recorded that at a meeting at the Chand Bagh protest site on 17th February 2020, the roadmap for escalating chakka jams into riots — the final phase of the alleged conspiracy — was outlined by co-accused Athar Khan. This meant Khan's individual role had, in effect, been identified by the Supreme Court even while deciding the appeals of others.

The bench then analysed the statement of protected witness “Pluto” recorded under Section 164 CrPC, in which the Appellant is attributed as saying: “Puri delhi ko dahlana hai. Jab tak 100-200 log nahi marenge... tab tak hamara masla hal nahi hoga.” The bench found this corroborated by WhatsApp messages of Ovais Sultan Khan, a member of the Delhi Protest Support Group, who on 17th February 2020 explicitly wrote to Khan warning him that others had evidence of his plans for road blockades and incitement to violence, and asking him not to resort to violence. On the same day, Sultan Khan wrote again — “itnaa samjh lo sirf ki violence nahi karne denge tumhe aur tumhare dosto ko” — suggesting that Khan was persisting despite opposition within his own group.

The bench rejected the argument that Khan was a mere local-level facilitator. It held that any evidence pointing to the Appellant's role in the deaths caused during the riots would make him a core conspirator rather than a ground-level executor. The bench found his case clearly distinguishable from Shadab Ahmad, who the Supreme Court had described as a “site-level executor” and a “conduit for information and coordination rather than an architect of escalation,” and from Gulfisha Fatima, who lacked independent command over multiple protest sites. Khan, by contrast, had actively exhorted others toward violence and death, persisting despite repeated opposition from co-members.

The bench also addressed the developing jurisprudence under Section 43D(5) of the UAPA. It noted that in Syed Iftikhar Andrabi, the Supreme Court had expressed reservations about the narrower reading of K.A. Najeeb adopted in Gulfisha Fatima, reaffirming that “bail is the rule and jail is the exception” flows from Articles 21 and 22 of the Constitution and cannot be displaced by statute. However, the bench also recorded that by its May 2026 order in Tasleem Ahmed, the Supreme Court had referred the tests under Section 43D(5) to a larger bench. In that order, the Supreme Court granted interim bail to two accused persons who had undergone substantial incarceration and whose trials showed no immediate prospect of conclusion.

The bench did not treat the pending reference as a reason to grant bail to Khan. It held that regardless of how the broader Section 43D(5) question is eventually settled, the specific prima facie material against Khan — connecting him to deaths and destruction — placed him in a different category. The bench found that his release would also pose a flight risk and a real risk of witness intimidation, given that the protected witnesses had not yet been examined and Khan had previously refused to desist from violence despite requests from his own associates.

The Finality Question

The bench gave independent weight to the procedural posture. Khan had not challenged the Co-ordinate Bench's judgment of 2nd September 2025 before the Supreme Court. As a consequence, his detailed role was never independently examined by the Supreme Court in Gulfisha Fatima. The findings against him by both the Trial Court and the Co-ordinate Bench had thus attained finality. The bench held that this was a relevant factor: the Appellant could not now seek the benefit of the Supreme Court's bail framework for co-accused whose roles had been individually assessed at that level, when he had chosen not to place his own role before the Supreme Court for consideration.

Outcome

The Division Bench upheld the Trial Court's order dated 29th January 2026 and dismissed CRL.A. 137/2026. The bail appeal was rejected. The bench directed that the charge-sheets handed over in a pen drive by the State's counsel be kept in sealed custody with the Registry. The bench clarified that all observations were confined to the bail application and would not influence the Trial Court's adjudication on merits. Pending applications, if any, were disposed of.