06, Sep 2021 | Adeeti Singh
A few years ago, the top court of our country had observed the prejudicial and biased approach adopted by the investigative agency in the Best Bakery Case, where the tiny outlet was burnt down on March 1, 2002 by a violent mob in motivated retaliation to the Godhra train mass arson. After a series of roadblocks – hostile witnesses, intimidation, demand for a re-trial, appeals – the Supreme Court Bench of Justices Doraiswamy Raju and Arijit Pasayat made some notable observations that went on to shape the jurisprudence on State accountability.
In Zahira Habibullah H. Sheikh and Ors vs State of Gujarat and Ors. (2004) 4 SCC 158, a case spearheaded by CJP’s efforts, the court ordered a re-trial, outside the state of Gujarat while ruling that not just the justice delivery system was taken for a ride, but the investigation was “perfunctory”, “impartial”, and the evidence was not brought before the court with any seriousness or meticulousness.
In paragraph 68 of the judgment, the Division Bench had said:
“Criminal trials should not be reduced to mock trials or shadow boxing or fixed trials. Judicial criminal administration system must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution”.
Almost 16 years later, a similar kind of segmentation haunts us. The real darkness on the horizon after the pan-India anti Citizenship Amendment Act (CAA), 2019 protests, was the ravaging North East Delhi violence that killed 53 people and left more than 200 injured. The hasty enactment of the 2019 amendment to citizenship laws (December 9 and 11, 2019) is a poignant reminder of the ruling dispensation’s motive: exclusion and authoritarianism.
The State has since tried to manipulate the narrative by calling the demonstration communal, instead of the legislation that aims to provide citizenship to only non-Muslims from the neighbouring countries of Pakistan, Afghanistan and Bangladesh. Senior Counsel Trideep Pais, the counsel for youth leader, Umar Khalid was cogent in his arguments before the district court when he called out the Delhi Police’s special cell that falsely portrayed the anti-CAA protests as a “secular façade”. The protests were an organised effort for inclusion, an attempt to assert identity and belong to the country. But the State deflected attention and manipulated public opinion by deliberately trying to confuse protests with ‘planning a riot’.
A vast array of Indians, whose politics the government may not agree with, found their names in the Delhi violence conspiracy chargesheet. They were charged under the anti-terror law. One year later, eighteen are still incarcerated, and very few are out on bail. The Delhi Police, that come under the Union Home Ministry, have named and arrested student activists from only two universities, Jamia Millia Islamia and Jawaharlal Nehru University (JNU), and also some teaching faculty members of JNU, Delhi University to assert that there was an attempt to subjugate the government established by law, violently.
Indian courts have tried to dissect this chilling message, to some extent. Though verdicts have come after a whole year of being held under a manipulated process and a draconian law, the district courts and most recently the Delhi High Court has questioned the Delhi Police’s probe into the violence of February 2020. Perhaps this will help in re-shaping public discourse, that protestors are not “Islamic extremists”, “urban naxals”, and “anti-nationals”, and bring to the fore, a conversation on how citizens must and need to hold the state accountable.
Let us analyse some judgments for this purpose:
“Callous and indolent investigation”- ASJ Vinod Yadav
September 2, 2021: On September 2, the Additional Sessions Judge Vinod Yadav discharged three accused- Shah Alam (26), Rashid Saifi (23), Shadab (26) from the case FIR number 93 of 2020, on the basis of two complaints alleging that a shop was burnt, attacked and looted during the violence. (State vs Shah Alam and Ors, Sessions Case Number 68 of 2021).
The court noted that the trial in the violence case has not begun, and accused persons have been languishing in jails for over a year. He said, “The police seem to be still busy filing supplementary chargesheets therein. The precious judicial time of this Court is being wasted in giving dates in those cases…where there is hardly any investigation carried out by the police.”
The court expressed its anger at the fact that the three accused were neither specifically named in the FIR, nor a particular role was assigned to them. This was followed by the observation that, “The sort of investigation conducted in the instant case and the lack of supervision thereof by the superior officers clearly depicts that the investigating agency has merely tried to pull the wool over the Court’s eyes and nothing else.”
The court observed that the case appeared to have been solved merely by filing this charge sheet “without any real effort being made to trace out eye witnesses, real accused persons and technical evidence”. ASJ Yadav also reportedly said, “When history will look back at the worst communal riots since partition in Delhi, it is the failure of the investigating agency to conduct a proper investigation by using the latest scientific methods, which will surely torment the sentinels of democracy.”
It blamed the senior officers for their “callous and indolent investigation”, which also was a criminal waste of the taxpayer’s money and time!
“Vague evidence and general allegations”-Justice Subramonium Prasad, High Court
September 3, 2021: On September 3, the Delhi High Court granted bail to five accused persons- Mohd. Arif, Shadab Ahmad, Furkan, Suvaleen and Tabassum in the alleged murder of Head constable Ratan Lal, and for causing head injuries to the DCP during the violence in February last year. Justice Subramonium Prasad rejected the arguments of the Delhi Police regarding the accused persons’ call data records, their clothes during the committing of the alleged crime, and the available CCTV camera footage. (Mohd. Arif vs State, Bail App. Number 774 of 2021).
He held that the video footage placed before the court that shows the accused person at the crime scene is inconclusive, as they are not explicitly visible in the same. He also observed that there is no evidence that was placed on record that could corroborate the contention that the accused Mohd. Arif had damaged the CCTV cameras. He said, “merely being caught staring at a CCTV camera right before its dislocation by a co-accused cannot form the basis of this assumption.”
Justice Prasad did record in his judgment that it is “egregious and against the principles enshrined in our Constitution” to allow an accused to remain languishing behind bars during the pendency of the trial, and that bail is the rule and jail is the exception. But the principle came to apply on to the accused after 17 months of incarceration!
“Callous, inefficient, unproductive investigation”- ASJ Vinod Yadav
In the case State vs Rohit, Sessions Case No. 202 of 2021, the district court went on to frame charges against accused Rohit on the basis of a complaint made by one Anwar Ali regarding vandalising, looting and burning his house down by a mob.
The court observed that there was enough ocular evidence in the form of supplementary statements of complainant and public witnesses in order to frame charges against the accused, with no help from the Police.
“Their statements cannot be brushed aside/discarded at this stage, merely because there has been some delay in recording of their statements or the complainant(s) have not specifically named them in their initial written complaints….It is worth noting that investigation in the matter appears to be highly callous, inefficient and unproductive; however, as noted earlier this Court at this stage, cannot ignore the statements of victims dehors the delay in recording of FIR in the matter”, noted ASJ Vinod Yadav.
“Delhi Police itself does not know the details of the investigation”- ASJ Amitabh Rawat
August 25, 2021: On August 25, a shocked Additional Sessions Judge, Amitabh Rawat said, “This leads to a conclusion that though the case is being investigated by the police, the police did not itself know that they were investigating the case and when told came to realize that it is investigating the matter, the details of which they do not know. Since the police did not themselves know that they were investigating the case, the natural corollary is they could not have informed the Court or the complainant/ respondent about the same.”
He passed this order in a review petition filed by the Police against the lower court’s order. The court seemed perplexed at Delhi Police’s conduct which did not know about clubbing of a complaint, filed by the respondent Saleem who alleged an attack on his house during the carnage with another FIR of the same incident.
It was noted that the complaint was lodged in March 2020 however, the Delhi Police realised of having clubbed the same with another FIR only in November that year, i.e., after a lapse of 8 months (State vs Salim, Crl. Revision Number 102 of 2020).
“Pained to see the lackadaisical attitude of the Police”- ASJ Vinod Yadav
Haji Hashim Ali had alleged that on February 25 last year, a mob had put on fire two LPG cylinders lying inside the Madina Masjid, resulting in an explosion and thereby causing substantial damage to the Masjid. Furthermore, it was alleged that one person from the mob climbed on the top of Madina Masjid and hoisted a saffron flag atop it by chanting communal/religious slogans.
Meanwhile, an FIR was registered by Police on the basis of a written complaint by one Naresh Chand alleging that a riotous mob had caused damage to his house. Ali was arrested in the FIR and was subsequently granted bail. After being released on bail, Ali had made a written complaint to the Delhi Police in June 2021 where his complaint was clubbed with the FIR in which he was an accused and the Police did not register a separate FIR on his complaint.
But during the hearing before Judge Vinod Yadav, he was apprised by the Delhi Police that a separate FIR was already lying registered regarding the Masjid arson and it was also stated that the grievance of Ali was duly redressed in the matter.
In this backdrop, Judge Yadav called out the Police for their “callous attitude/negligence”. He said, “This Court is quite pained to see the lackadaisical attitude adopted by the investigating agency in the matter…..The investigating agency was duty bound to have apprised the learned ACMM (North-East) of the entire facts and place complete material before it, which admittedly has not been done.” (State vs Haji Hashim Ali, Crl Revision No. 7 of 2020)
Remote links to the main crime
Faizan Khan, an employee of a mobile shop allegedly sold a SIM card without verification in December 2019 for Rs. 200. This cost him three months of his life and terrorism charges as he was arrested under the UAPA FIR 59/2020 on July 29, 2020. The Police alleged that someone else’s’ Aadhaar card and photograph was submitted by the subscriber to purchase the SIM card from Faizan, and this mobile number was allegedly used by the media team of Jamia Coordination Committee headed by co-accused Safoora Zargar to create WhatsApp groups to coordinate anti-CAA protests.
Justice Suresh Kumar Kait of the Delhi High Court granted him bail in October last year, after noting that the onerous conditions/embargo under Section 43D (5) of the UAPA would not be applicable to him since the investigating agency’s status report did not disclose the commission of offences under UAPA, except for bald statements of the witnesses. This is how casually the Delhi Police invoked UAPA. Faizan was not even part of the protests that was alleged to be a plot to defame India! (Faizan Khan vs State NCT of Delhi, Bail App. No. 2725 of 2020)
The Delhi Police accepted that Faizan was not part of any “illegal activity”, nor did he have active knowledge that the SIM card he sold was for an “unlawful purpose”. There was also no proof on record such as CCTV footage, video or chats of Faizan with any of the group except the allegation that he provided SIM on fake ID in December 2019. But he is in for a long haul to free his name from UAPA charges.
His case is a classic example of the way the Delhi Police under the Centre has played its ubiquitous corrosive politics, manipulating democratic institutions. The Police has picked up remote links to incriminate people over FIRs and charge sheets running into thousands of pages.
Planted witnesses, conveniently placed constables
Irshad Ahmed, an associate of jailed Tahir Hussain (who is the main accused in UAPA FIR 59), was granted bail by the High Court on October 7, last year. Despite lack of electronic evidence such as CCTV footage or photos to implicate Ahmed, he spent 8 months in jail before getting bail. As per statement of constables Pawan and Ankit, who were eyewitnesses and were present at the spot of crime, they had identified Irshad and Tahir Hussain for “throwing petrol bombs on the houses of Hindu community.”
However, Justice Suresh Kait noted that the police constables did not make any complaint on the date of the incident (February 25), and filed the FIR only on February 28. “Thus, the said witnesses seem to be planted one”, he observed. (Irshad Ahmed vs State NCT of Delhi, Bail App. No. 2696 of 2020)
On May 29, 2020, in the case Firoz Khan vs State, Bail App. No. 945 of 2020, Justice Anup Bhambhani of the Delhi High Court dismissed the statement of Vikas, a police constable who claimed to have witnessed an act of burning down a shop during the violence. The informant had apprised the court that though he had contacted the police control room when his shop was being attacked by the mob, there was no immediate response. The Court was in a conundrum as to why the informant contacted the PCR if constable Vikas, who claimed to be the eyewitness, was right there at the spot.
Justice Bhambhani remarked, “Even on first blush, it is not understood as to why the complainant would say that he failed to reach the police by telephone, if Constable Vikas was already present there.”
Similarly, on October 10, 2020, in Mohd. Rehan vs State NCT of Delhi, Bail App. No. 2849 of 2020, Justice Kait granted bail to Rehan accused of rioting, after noting that the statements of Constables Pawan and Vikram were recorded as eyewitnesses whereby, they identified Rehan but they did not make any DD entry make a PCR call on the day of the incident. The alleged incident took place on February 25 whereas the FIR in the case was registered on March 4.
There is no doubt that unprecedented terror and repression was unleashed by the nexus of our rulers, the executive forces they dominate, and the media. In the painstakingly long process of obtaining bails, discharges, acquittals and dismissals, it is now time for courts to pin the focus on the role played by the government and its branches when we witness a mass scale catastrophe like this. Will there be ultimate accountability and a reckoning?
Nineteen months have gone by since the devastating Delhi violence, many remain incarcerated at the risk of damage to their reputation, but hate mogers like Ragini Tiwari and Kapil Mishra roam free. Is it because their hate speech of “kaat dalo” (kill them) and “shoot the traitors” doesn’t count as violent hate speech or they enjoy the patronage of the government? Does this kind of use of provoking mobs into mass violence and terror not count for the ‘law and order machinery’ under the ministry for home affairs?
One common thing observed in all three bail orders dated June 15, 2021, of UAPA accused students Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha were that there was “no prima facie evidence” against them to invoke this anti-terror law. The court observed and rejected the idea of the State which repeatedly urged that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi.
The Bench of Justices Siddharth Mridul and Anup Jairam Bhambhani perused the chargesheet and all the materials against them and said that the allegations made against them are not even borne-out from the material on which they are based. In Natasha’s case, the court remarked, “The State cannot thwart the grant of bail merely by confusing issues.” (Natasha Narwal vs State of NCT of Delhi, Crl. App. No. 82/2021).
These judgments are no doubt pertinent counterweights offered by the judiciary in our political climate where the regime has tried its best to delegitimise resistance. Nonetheless, the narrative of how and why the investigation agency faltered and the tools that should be used as a deterrent to bar such recurrence should have penetrated mainstream media and public discourse yesterday. Our state cheerleaders have made some grave mistakes over the past few months, and such subverters of constitutional values must be questioned.
SHO and DCP failed in supervisory duty – CMM Arun Kumar
In the matter of FIR 130/2020 where the accused were charged with rioting and unlawful assembly, the court of Chief Metropolitan Magistrate sought an Action Taken report, as the trial was being adjourned for filing supplementary chargesheet. The court observed that the SHO Gokulpuri police station and DCP (NE) were being absolutely evasive as if they are not aware of the status of the investigation.
“I deem it appropriate to report the matter to Commissioner of Police, Delhi so as to bring the conduct of the SHO PS Gokal Puri and DCP (NE) to his notice in as much as they are failing in their supervisory duties despite receipt of copy of last order of this court and are trying to avoid taking any responsibility in the matter by not concluding further investigation in the present matter despite repeated directions causing delay in trial despite the fact that all the four accused in the present case are in JC for over a period of almost one year,” the court said in its September 9 order. (State vs. [email protected] CR Case No. 795/2020)
Lackadaisical attitude in investigation – CMM Arun Kumar
The CMM court, on September 6, directed Delhi Commissioner of Police to take action to ensure proper investigation in riots cases. On September 1 as well, the court had pulled up Delhi Police for its conduct of filing supplementary chargesheets and failing to ensure conclusion of investigation due to which the court was unable to go ahead with trial.
“Last and final opportunity is accordingly given to the State to do the needful in the matter for filing of supplementary chargesheet positively within a period of three weeks from today, failing which, the Court shall proceed further with the matter without giving any further opportunity to the State in this regard particularly in view of the fact that the accused is running in J/C for over a period of almost one year,” the court said. (State v. Dinesh Yadav @Michael CR Case No. 1274/2020)
Image courtesy: Gym burnt down in Shiv Vihar. Photo by Banswal Hemant via Wikimedia Commons.