Why the HC Judgment Refusing to Quash ‘Pro Hindu’ Delhi Police Order is Flawed

No prejudice has been caused, says the high court, yet asks investigating officers to ignore the official instructions issued to them in the same document.

New Delhi: In an unusual judgment, the Delhi high court has refused to quash a controversial July 8 order issued by the Delhi Police which states that “arrests of some Hindu youth had led to a degree of resentment among the Hindu community” and therefore, subordinate officers should take due care and precaution while arresting any person. The judgment in the case of Sahil Parvez and Another v Government of NCT of Delhi and Others was delivered on Friday.

The high court judge, Justice Suresh Kumar Kait, noted that the Delhi riots took place from February 24 to February 26 and all the cases in relation to the riots were registered before the July 8 order was issued. He drew attention to the police claim that 535 Hindus and 513 Muslims have been charge-sheeted in riot-related cases.  This, he said, included 16 Hindus charge-sheeted for the murder of the father of one of the petitioners and six Hindus charge-sheeted for killing the mother of the other petitioner. Justice Kait then said, “Since in my considered opinion, the accused persons have already been charge-sheeted before issuance of letter dated 08.07.2020, no prejudice has been caused.”

Clear inconsistencies

Justice Kait’s order suffers from three glaring flaws.

First, since the petitioners had accused the police of going soft on Hindu accused in general, and not just in their own cases, the fact that a total of 22 Hindus had been charge-sheeted in the two cases that concerned them can hardly be sufficient for dismissing the petition. It is entirely possible that other Hindus have not been arrested or charged as a result of the July 8 order – a charge that some riot victims have made. In any case, the possible link between the July 8 order and the non-arrest of some Hindu accused could not have been dismissed on the mere claim of the police that the pre-July 8 arrests were exhaustive.

Second, the police claim of having charge-sheeted 535 Hindus and 513 Muslims before the July 8 order was issued can hardly be cited as proof that “no prejudice has been caused” by the July 8 order.

Justice Suresh Kumar Kait. Photo: Delhi high court website

After all, the petitioners’ accusation is that the Delhi Police on that day instructed its investigating officers to take “due care and precaution” in making arrests given the “degree of resentment among the Hindu community”, i.e. go slow in arresting Hindus. Unless the high court is able to establish that the July 8 order did not lead to any slowing down in the arrest or charge-sheeting of Hindus accused of rioting – including an analysis of the charges and sections applied – it has no basis whatsoever to conclude that “no prejudice has been caused”.

Third, Justice Kait’s refusal to quash the July 8 Delhi Police order is also indefensible because his judgment clearly disapproves of the instructions to investigation officers issued by the Delhi Police in that document. “No arbitrary arrest should be made in any case and all evidences (sic) must be discussed with Special PPs (Public Prosecutors) assigned for each case,” the July 8 order had stated.

The petitioners contended – and the police agreed – in court that neither the Code of Criminal Procedure (CrPC) nor any other provision of law make such a discussion mandatory. “However, in case legal opinion required, the police may seek legal opinion from the Prosecution Department on the particular issue. The same is not applicable when the evidence is on record and it is totally the prerogative of the IO of the case to decide which evidence should be part of the charge-sheet,” Justice Kait’s order says.

In paragraph 14 of his judgment, Justice Kait drives home this point: “…the IOs of the cases shall deal with the cases in accordance with law and shall not take into consideration … instructions issued vide order dated 08.07.2020, whereby it is stated that the evidences (sic) must be discussed with Special PPs assigned to each case.” (emphasis added)

With such a clear indictment, the July 8 order of the Delhi Police has no legs to stand on. Justice Kait’s refusal to quash it only because it caused no overt prejudice – itself a questionable conclusion – is, therefore, inexplicable.

Unreasonable censure of media

Despite his own clear disapproval of the July 8 order, Justice Kait thought it appropriate to indict the electronic/print media for publishing “some news which is against the letter and spirit of the order dated 08.07.2020”. “Therefore, it is suggested that media being the fourth pillar of democracy, news should be clear after verifying the facts so that no prejudice is caused to anyone or hatred is spread among communities in this country,” Justice Kait said in his judgment.

Also read: Former Cops Question ‘Mischievous’ Delhi Police Order Urging ‘Caution’ on Hindu Riot Arrests

In the next paragraph, however, the judge also had advice for the police: “It is further suggested that the investigating authorities must not create any bias on the basis of any instruction issued by the senior officers which is not recognised under any law.”

Given his advice to the police, it is not clear what Justice Kait meant by “the letter and spirit of the July 8 order” which he says the media had missed.

Police officer off the hook

Although the petition had sought disciplinary action against special commissioner of police (crime and economic offences wing) Praveer Ranjan for issuing this controversial order, Justice Kait thought it was his duty to protect him and other senior police officers who defended the issuing of July 8 order. He states in his judgment:

“The observations made by this Court will not cause any prejudice to respondent No.4 or any other police officers and shall not come in the way of their service in future in any manner.”

But this begs the question – If the letter and spirit of the Delhi Police’s July 8 order is so noble, why did the judge ask the IOs to ignore the instructions it contained? And by his own order, it is clear that prejudice would have been caused by the July 8 order, had it been issued before the cases were registered, and chargesheets filed.

Police data shows Muslims targeted

According to the police, a total of 53 people were killed in the riots, 40 of whom were Muslims. Police data also shows that 80-90% of the shops and homes damaged in the violence belonged to Muslims. The attackers, presumably, were non-Muslims, many of whom, it is alleged by riot survivors, were mobilised by right-wing Hindu political leaders.

The Delhi Police July 8 order stated that “community representatives are alleging that these arrests are made without any evidence and are even insinuating that such arrests are being made for some personal reasons.”

The police order named two Muslim men and stated: “In the same area, resentment among Hindu community is also reported for alleged police inaction” against the two, “who are alleged to have been involved in mobilising members of Muslim community during Delhi riots and anti-CAA protests.”

Also read: Delhi Riots: LG’s Order on Appointment of Prosecutors Smacks of Bad Faith, Immorality

On July 15, Delhi Police tweeted a response to the Indian Express which had broken the story of the July 8 order. It confirmed the contents of the order but insisted this was not indicative of any bias.

The July 8 order was challenged by two petitioners whose family members were killed in the violence which erupted in February this year.  The petitioners alleged that it is indicative of bias in the Delhi police, besides having the potential to make unlawful and illegal interference in the performance of investigative functions by police officers.

“The letter was written only to inform the investigating officers about the representations being received from both the communities and to sensitise and guide them through the investigation of these cases,” the police had claimed before Justice Kait. But Justice Kait clearly hinted in his order that the Delhi police had not taken due care in issuing instructions within the powers mentioned under Section 36 CrPC (Paragraph 16).