Communalism

The Good, Bad and Ugly of the Delhi Police Riot Chargesheets

A chargesheet is not the opinion of an officer but represents the evidence collected by the police. If Harsh Mander's speech is not even sought to be presented as evidence in court, why has it been mentioned in the chargesheet?

The two chargesheets filed against AAP councillor Tahir Hussain by the Delhi Police in connection with the Delhi riots of February 2020 offer a textbook illustration of how a criminal investigation should and should not be conducted

The two chargesheets pertain to the tragic murder of Ankit Sharma, an official with the Intelligence Bureau, and to general rioting in the area.

What is a chargesheet

A chargesheet, also called a final report, is filed under section 173 of the Code of Criminal Procedure (CrPC). The first two clauses of this section contextualise, what a chargesheet is and what it should contain:

173. Report of police officer on completion of investigation.

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, weather with or without sureties;

(g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.”

The chargesheet is the result of the investigation and draws on what the investigation reveals. This is how chargesheets are made and are filed.

Unfortunately, the first five pages of the Delhi Police chargesheet, are spectacularly irrelevant. After telling us the names of the accused and the lists of witnesses, they talk about the violence at Jamia in December 2019 and the protests against the Citizenship (Amendment) Act. They talk about Sharjeel Imam, Chandrashekhar Aazad and Harsh Mander and their speeches.

Interestingly, the chargesheet mention the allegation – first made by solicitor general Tushar Mehta at the Supreme Court on the basis of an edited excerpt from Harsh Mander’s speech at Jamia – that the activist had exhorted people to ignore the apex court. Leaving aside the fact that the Supreme Court itself, despite Mehta drawing their attention to this excerpt, did not see fit to issue any contempt notice, Mander’s actual speech itself gives a very different impression.

The fact that the police is relying on an edited excerpt shows two things. Firstly, the investigating officer concerned has not even heard the speech that he is quoting, and the speech itself is not even included in the list of evidence to be presented at the trial. Secondly, the inclusion of facts which are not even sought to be proved tells us that the chargesheet is based as much on theory as on facts.

A chargesheet is not and cannot be the opinion of a police officer. It represents the evidence collected  by the police, and is submitted to the court for the latter to apply its mind.  The court does not proceed on anything unless evidence is presented. So if Mander’s speech is not even sought to be presented as evidence to the court, why has it been mentioned in the chargesheet?

Similarly, the references the chargesheets make to Chandrashekhar Aazad, Sharjeel Imam, the Shaheen Bagh protests, etc. are meaningless. A chargesheet should mention relevant information and explain how it is to be proved. Inclusion of information which is not even sought to be proved shows that even the police think such information is irrelevant. The police have done themselves and the concept of due process a disservice by indulging in speculation about the role played by various individuals, which seems little more than mud-slinging.

The investigation – the good, bad and the self-contradictory

Regarding the investigation itself, the police have arrested a person who, as per a video received by them from an unknown source, was seen dumping a body along with two other persons, into the drain near Chand Bagh Pulia, from where the body of Ankit Sharma was later recovered. The police traced the person who made this video, and have seized the original recording and sent it for  forensic analysis. The police, however, say that the faces of the persons in the video are not visible. They have arrested a person named Haseen and say that he has confessed. Haseen was also found to own a red shirt, and one of the persons dumping the body on the video was wearing a red shirt. The police also claim to have a recorded transcript of a call between Haseen and a friend where he admits to having committed the murder. Leaving aside whether any of this can be proved in court, this is how investigations are supposed to be.

What is problematic about the chargesheet, however, is that the police then go on to give a different spin to the whole tragedy.

Reconciling father’s complaint with police claim

Ankit Sharma’s father, Ravinder Kumar, who also works in the Intelligence Bureau, registered the FIR. Kumar mentions Tahir Hussain and says there were ‘gundas’ on the terrace of Hussain’s property who were indulging in firing, throwing petrol bombs and stone-pelting. He then goes on to say that his son Ankit left their home at around 5 pm on February 25 but when he did not return after a while, the family started looking for him, including in hospitals and finally filed a missing persons report the next  morning.

The next morning, he was also informed by some young men from the locality that Ankit had gone with somebody named ‘Kaalu’ and another young man who lived nearby. On further inquiry, he was told by people that somebody had been killed in a nearby mosque. It would be understandable if the police investigation had confirmed Kumar’s statement. However, strangely, it does not. Kumar says that he and his family had no idea about what happened to their son.

Now, the police claim to have a number of eyewitnesses who say that Ankit Sharma was dragged off by a mob, led by and at the instigation of Tahir Hussain . They also claim that Ankit was murdered at a spot which was emphatically not the Chand Bagh mosque.

As per the chargesheet (Paragraph 38):

“above witnesses have stated that on 25.02.2020 at about 5 PM, Ankit Sharma had moved ahead from the crowd of Hindu people standing a few distance away from Tahir Hussain’s house to pacify the people of both sides, the rioters numbered in 20-25, equipped with stones, rod, lathi, danda, knife etc came from the side of Chand Bagh Pulia, caught hold of Ankit Sharma on the instigation of Tahir Hussain from the front of Tahir Hussain’s house and dragged him to Chand Bagh Pulia, opposite Bunny Bakers Cake Shop, E-17, Nala Road, Khajuri Khas, Main Karawal Nagar Road, Delhi and beaten him to death by inflicting sharp and blunt injuries and after killing him, threw his dead body in the drain near Chand Bagh Pulia, Main Karawal Nagar Road, Delhi at 5.39 PM.”

If the version in the chargesheet is true, the question that remains is why nobody told Kumar that his son had been brutally killed. These were all people from the locality. There is no reason for them to not tell the family about what had happened that evening or even at night or the next mornong. Instead, Kumar only came to know about his son’s tragic death after his body was recovered from the drain the next day. Then there is the question of the young man ‘Kaalu’ with whom Ankit had left the previous day. Two young men named Kaalu are witnesses in the case. If ‘Kaalu’ was aware of what happened to Ankit, why did he not tell the father about the murder of his son?

Kumar’s complaint shows that the family did not know what happened to Ankit. He does mention in his complaint that he suspects Tahir Hussain and his accomplices of having killed Ankit Sharma in a statement that is clearly given after the recovery of his son’s body at noon on February 26, i.e. the next day. The police investigation states that Ankit was lynched publicly in front of neutral witnesses who have now sought to implicate Tahir Hussain, yet strangely none of these persons told anybody in Ankit Sharma’s own family what had happened to their son. The father’s sense of loss cannot be underestimated. He gave a statement as per his own knowledge. The police investigation, as revealed in the chargesheet, is hard to reconcile with his statement. This is scarcely believable.

Evidence against Tahir Hussain

Tahir Hussain may not be a good person as Kumar has said, but the issue here is whether he is guilty of murder or not. The police say that the evidence of him being involved in the riots is that Molotov cocktails, and assorted stones were recovered from the terrace of his property, that he had withdrawn his pistol from the police station a few days before the riots and cannot now explain what happened to all the bullets he had, that the CCTV system at his office was not functioning and that neither he nor his family nor his property were affected in the riots which, as per the police, go on to show that he was a perpetrator of the riots, not the victim.

Regarding Hussain’s repeated phone calls to the Police Control Room, it is said that since there was a huge mob between where he was and the police station, no police force could be sent to assist him. This, along with the police’s claim that his house was completely undamaged, is taken by the police as proof that he had made these PCR calls only as an alibi.

The case against Tahir Hussain is circumstantial at best. The fact that his property did not sustain as much damage as the neighbouring properties could simply be evidence of the fact that as a municipal councillor he was in a better position to defend his property. That is for Hussain to answer and for the police to prove that his property was indeed undamaged.

The fact that he had withdrawn his pistol from police custody ignores the fact that around the time of elections, licensed weapons are required to be surrendered and are taken back after the elections. Regarding the issue of the missing bullets, that is again something which has to be answered but is not relevant to the Ankit Sharma case as he was not killed by bullets. Further, as yet, there is no forensic confirmation that bullets were fired from Hussain’s gun at that time.

The fact that Hussain’s house was left empty, including famously being filmed and accessed at will by the press, shows that there can be no great sanctity to recoveries from that house as it was not properly sealed by the police.

The second chargesheet, regarding general rioting in the area, shows that the police were present in the neighbourhood and that rioting was going on in the area for a couple of days. This casts grave doubt on the police version that no police could be sent to the area because of the huge mobs. No CCTV footage has been found, as the police say that the cameras were destroyed by rioters. Even destroyed CCTV cameras will record footage until they are destroyed. The police case against the main accused, Haseen, may very well be strong, but as far as Tahir Hussain and the ‘larger conspiracy’ behind Ankit Sharma’s murder is concerned, it appears specious. Similarly, regarding the case of general rioting as well, there is no clinching evidence against Hussain.

Perhaps that is the reason for the irrelevant theorising at the beginning of the chargesheet. Instead of confining itself to the investigation, the chargesheet seems an attempt to set up a larger narrative. This is not the police’s function or their role. Even those parts of the investigation which seem professionally done and based on evidence (eg. involving Haseen), become questionable when the rest of the chargesheet is seen with its hypotheses, speculations and presumptions. The evidence presented in court has to hold up as per the rules of evidence, not as per the fervent beliefs or opinions of the investigating officer.

Sarim Naved is a Delhi-based lawyer