Delhi riots: HC declines to interfere with lower court order, stays fine imposed on police for now

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The Delhi High Court Wednesday declined to stay the lower court order criticising Delhi Police for failing to register an FIR on a Ghonda resident’s complaint alleging that he was shot in the left eye during the Northeast Delhi violence last year. However, it said that the cost of Rs 25,000 imposed on police officers by the lower court may not be deposited till the next date of hearing.

“We can expunge the strictures (only) after hearing you,” said Justice Subramonium Prasad.

The police before the Court has challenged two orders passed by the lower courts — a metropolitan magistrate (MM) order dated October 21, 2020 directing it to register an FIR on Mohammad Nasir’s complaint and the order passed by additional sessions judge (ASJ) Vinod Yadav dismissing the investigating agency’s appeal against the order passed by MM.

On March 19 last year, Nasir in his complaint to the police said that on February 24 he was fired upon near his residence, due to which he suffered a gunshot injury in his left eye. He named Naresh Tyagi, Subhash Tyagi, Uttam Tyagi, Sushil, Naresh Gaur and others in the case. Nasir was shot “since he belonged to a different community”, as per the complaint.

Since ‘no FIR was registered’ after his complaint, he had moved the lower court for the same. The police had argued that an FIR already stood registered with regard to the incident of rioting in which it was mentioned that Nasir and six more persons had suffered gunshot injuries on the said date. It, however, also had told the lower court that no evidence was found against the persons named by Nasir.

ASJ Yadav in the order on July 13 said that defence of the accused persons has been sought to be created by the police in the different FIR and that police officers have “miserably failed” in their statutory duties in the case. The lower court also imposed a cost of Rs 25,000 on Bhajanpura police station’s Station House Officer and his supervising officers, while observing that the facts and circumstances of the case reveal “a very shocking state-of-affairs”.

Additional Solicitor General S.V Raju, representing the police, before High Court on Wednesday submitted that their main grievance at present was limited to the cost and strictures passed against the police officers.

With regard to the case, Raju submitted, “a thorough investigation was done and it was found that at the time of the incident, he (accused) was not here. He was about 100-150 kilometers away from Delhi, therefore he could possibly not be here.”

Raju also argued that it was open for the sessions judge to hold that there were two different incidents and may be treated as two different FIRs. “But our case is that even if they are treated as two different FIRs, the investigation leads to only one conclusion, which is an inescapable conclusion that the accused was not there,” he submitted, adding that the cost was imposed without hearing the police officers.

While issuing notice to Nasir in the petition filed by police, the court listed the case for the next hearing on September 13.

Advocate Mehmood Pracha, representing Nasir, while seeking a short date for the next hearing, submitted that complainants and others were being threatened. “We are under tremendous pressure to withdraw all these petitions,” Pracha submitted.

The police in the petition have argued that the registration of FIR would further “increase the burden” on a judicial system that “already” was “overburdened”.

Naresh Tyagi, one of the persons named by Nasir in his complaint, has also filed a similar petition before the High Court challenging the orders passed by MM and ASJ. Justice Subramonium Prasad on July 19 stayed the order passed by the MM directing the police to register an FIR.

One of the main grounds taken by the police in its petition against the order passed by sessions court is that MM of dated October 21, 2020, has been now stayed by the High Court.

The police have also argued that Nasir’s statement has already been recorded during the course of the investigation. “On some aspect, a supplementary investigation is in progress and there is no occasion for a separate FIR as the offence is relating to the same offence,” it said.

The police also said that they had arrested Tyagi initially but it was later “revealed” that he was in Uttar Pradesh on February 24 last year and returned back late “on 24/25.02.2020”. His presence at Baghpat was “determined” by a video captured during an engagement ceremony attended by him, eyewitnesses and by examining his call detail records, it said.

The police also argued that the lower court has made “very serious remarks against the investigation” even before the commencement of the trial which “is contrary to the basic law that no finding should be given in the midst of trial”.

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