Delhi: The court of additional sessions judge Arul Varma convened eight times between May 2022 to January 2023 to frame charges against 12 accused of instigating violence in Delhi on 13 December 2019, the day people gathered for the first march against the Citizenship Amendment Act (CAA), 2019, from Jamia Millia Islamia University to the Parliament.
After special public prosecutor (SPP) Madhukar Pandey appeared in the case on 26 November 2022 for the first time, 198 days after the first hearing on charges on 12 May 2022, and sought more time to prepare, the judge noted that Pandey was appointed on 26 July 2021.
Despite the time that had passed, neither the investigating officer nor the assistant commissioner of police or the deputy commissioner handed over the case to the SPP. Varma demanded an explanation from the police as to why the file was not handed over to him.
On 13 December 2022, three years after the date of the incident, the DCP told the judge that the delay in handing over the case was an “inadvertent” mistake. The judge said the DCP’s explanation was “pretty vague” but that he had regretted the inconvenience caused to the court.
Now, as the judge castigates the police, the State asks for repeated adjournments and the court frames charges, the Delhi police, according to court filings, appear to lack evidence against those accused: a Muslim mechanic, five former Muslim students of Jamia, four Muslim students of Jamia at the time, one Hindu student and one Muslim student from Jawaharlal Nehru University.
Our examination of these filings revealed other infirmities: statements of the accused and witnesses recorded after a year, no independent eyewitnesses and inconsistencies between the FIR, police witness statements and the oral arguments.
The march from Jamia to Parliament was organised a day after the citizenship bill was signed into law by the President of India on 12 December 2019. The CAA allows only non-Muslim migrants from neighbouring Muslim-majority countries a path to citizenship.
Police said a gathering of 700-800 marching from Jamia became violent when they were stopped, threw stones, broke barricades and set alight tires, and destroyed public and private property, forcing them to use tear gas. Among the injured was a student who lost his thumb after a tear gas shell exploded in his hand.
Three years after the violence, the Delhi police have not yet framed charges against the accused who face prosecution under 16 sections of two laws, including rioting, unlawful assembly, assaulting public servants, “attempt to commit culpable homicide”, “mischief by fire” and “criminal conspiracy”.
On 13 December 2022, three years after the violence, Pandey argued a prohibitory order under section 144 of the Criminal Procedure Code (CrPC), barring the gathering of more than five people, was in place in the New Delhi district, where the march was headed (not Jamia – the site of the planned march and ensuing violence).
Three months earlier, on 15 October 2022, the Delhi police conceded no written prohibition under section 144 on 13 December at Jamia.
These oral submissions differ from the version of events described in the complaint of station house officer Upender Singh in FIR 296/2019 of the Jamia Nagar police.
Registered on 14 December 2019, the FIR described how the police officers had announced section 144 was in place amid the escalating violence outside Jamia, making the gathering an “unlawful assembly,” and this message was displayed on a banner.
The Delhi police report to the home ministry of the government of India, run by the Bharatiya Janata Party.
No Prima Facie Case
Apart from conceding there was no prohibitory order in place in Jamia on 13 December 2019 and being unclear about whether the prohibitory orders were for Jamia or the Parliament, the Delhi police case is based on statements where the students say they participated in the protest, not the violence.
Such statements to the police are inadmissible as evidence and cannot be relied on for a conviction, the Supreme Court has said. The statements of the accused, in this case, were similarly worded and recorded by the police a year after the incident, bringing into question their credibility and accuracy, the chargesheets show.
Two independent witnesses listed by the police were never at the place of the incident. The police witness statements from 14 December 2019 to 31 January 2020 changed from witnesses saying that protesters were told section 144 was in place in Jamia to them being repeatedly told that it was in place in Delhi.
“The charges are framed three years after. The trial should have been over by now,” said Lubyathi Rangarajan, Article 14’s database editor, who was behind the county’s first database on sedition.
“In a case like this, so much depends on eyewitness testimony, witness testimony, and police testimony of what events transpired during the day,” said Rangarajan.
Vikram Singh, a retired director general of police for Uttar Pradesh, said that a riot investigation was one of the simplest to conduct, electronically and on the field, and the police should have completed the investigation within the stipulated 90 days.
“These were high-profile cases that drew international attention and national attention, and this could be showcased as the best investigation,” said Singh. “The least they can do is put their best foot forward. What you have told me is how not to conduct an investigation.”
Singh said that as far as the imposition of section 144 is concerned, it has to be a written order and specify the time and place and circumstance, and a verbal order or one written on a banner had to be reduced to formal order at the earliest.
“The investigator does not have the luxury of flip-flop conduct,” he said. “Either it was there or not there. Everything has to be in black and white.”
In Anuradha Bhasin versus Union of India (2019), the Supreme Court laid down some guidelines for imposing section 144 and held the state had to produce the order placing restrictions before the court.
No Delay: Special Public Prosecutor
SPP Madhukar Pandey told Article 14 there was “no delay” because the Supreme Court had relaxed the limitation period to file cases between March 2020 to February 2022 due to Covid, a period he referred to as “expunged”. Furthermore, said Pandey, the public prosecutor (Wasi-Ur-Rehman) had been appearing for the State.
“The proceedings got delayed because of Covid. Everything got delayed, what is special about this case?” said Pandey. “There is no delay. The public prosecutor was appearing, and when I was assigned and informed then I appeared.”
Rangarajan said the police strategy was to “cast an extremely wide net” at the time of the FIR.
The NCRB’s data on sedition since 2014 shows of the 559 arrested for sedition over the last six years, only 1% have been convicted, and 73 individuals were acquitted.
“What happens along the way is the prosecution’s case fails to match the evidentiary standards,” said Rangarajan. “This is the story of India’s criminal justice system. You cast this wide net and you assume it will be sorted out at trial. You, as an investigating agency, are well aware that your evidence is seriously lacking.”
The police are rarely made accountable for poor investigations, legal experts said.
Lack of Accountability
There are legal provisions for prosecuting a malafide prosecution by the state, but only after the end of the prosecution and they are rarely evoked. And judges rarely go beyond the occasional verbal lashing.
Malafide intention was rarely alleged but even if one did proving it was a problem, said V N Rai, a Haryana-cadre IPS officer who retired as the director of the National Police Academy.
“Ten years of your life have been wasted but who is wasting it?” said Rai. “Is it the court procedure, the investigation; the whole state is involved. Ideally, it should be done but how to pinpoint it?”
But there was no law to prosecute a shoddy investigation and incompetence , only a departmental inquiry, Rai said. “The same agency will once again come into the picture to investigate. There is no other independent agency, and they get away with it.”
In 2016, while denying compensation to six people acquitted in the 2002 Akshardham terror case after over a decade of wrongful incarceration, the Supreme Court said it “would set a dangerous precedent if the acquitted persons are allowed to seek compensation for their wrongful arrest”.
“Even with the trial courts who pull up the police for this, there is really no penalty for a terrible investigation,” said Rangarajan. “The price is paid by the accused, who are eventually discharged or acquitted.”
Violence In Jamia
The 12 indicted in the case for the violence on 13 December included Safoora Zargar, who was pursuing her MPhil in sociology at the time, and Asif Iqbal Tanha, who was studying Persian, later accused in the Delhi riots conspiracy case. Sharjeel Imam, pursuing his PhD at JNU, was indicted in both cases.
Article 14 reported on the cases of Zargar, Tanha and Imam here, here and here.
Two days after 13 December, another rally of anti-CAA protesters, students and residents made way for a violent confrontation. The Delhi police beat students in the streets and entered the university campus, where they hit them with canes in the library, partially blinding one student. Buses were burnt, and both sides sustained injuries.
After Jamia Millia Islamia University made a complaint at the Jamia Nagar police station, accusing police of breaking into the campus without permission and attacking students, no FIR was registered, so the university moved the court.
In February 2021, metropolitan magistrate Rajat Goyal dismissed the application to register an FIR against the Delhi police for breaking into the campus without permission and attacking students.
Goyal said while the police “used more force than necessary in some instances”, they were discharging official duties, and, therefore, sanction from the “competent authority” was needed to prosecute.
Petitions seeking a special investigation team to probe the police brutality on 15 December and transferring the investigation into the Jamia violence cases to an independent agency are pending before the Delhi High Court.
The National Human Rights Commission, a statutory body, said “the entire police action was not handled very professionally”, but largely blamed the Jamia students for the December violence. The People’s Union for Democratic Rights (PUDR), a human rights organisation, found the force used by the police to be “unauthorized”, “excessive”, “unjustified”, and “indiscriminate”.
Lack Of Evidence & Inconsistencies
FIR 296/2019 was registered at the Jamia Nagar police station on 14 December 2019, and only one person was arraigned in the main chargesheet filed before the court on 30 March 2020: the motor mechanic from Jamia Nagar, the only accused arrested in the case.
The police produced a photo from the 14 December 2019 Navbharat Times, of where, they alleged, he could be seen throwing a lit tyre. His statement to the police says he lit a tyre and threw it towards the police before running away and he participated in throwing stones.
In the second supplementary chargesheet dated 1 September 2021, close to two years after the incident, 11 students were added as accused, even though they were never named by the first accused in the statement the police say he gave them.
The statements of these students were recorded a year later, between October 2020 and December 2020, similarly worded with some using identical phrasing.
“In the crowd of students, there were many people who were continuously encouraging and exhorting the students to move ahead in the name of religion,” said the statements attributed to three of the accused.
“As a consequence, the students were provoked and became violent, and they pushed the barricade and pelted stones, started breaking things and attacked the policemen,” said the statements. “Because of that, the police used force against the protesting students, and they bussed many other students and me to the Badarpur police station.”
Arguing for the first time in the case on 13 December 2022, SPP Pandey told the court, “They were throwing stones not ringing the bell of a temple.”
In the chargesheet, they filed in April 2020, the police said they could not find any witnesses or CCTV cameras at the crime scene and were studying the footage they received from Republic TV.
The police have videos shot by their videographer and footage obtained from Republic TV, which defence lawyers say were shown in court and did not show why these eleven were accused among the thousands who had gathered there.
The two independent witness statements to the police were of a peon and a caretaker of the B R Ambedkar hostel inside the Jamia campus. The witnesses said they were not at the site of the protest. They name 18 students from the photos and the videos they were shown, saying they recognised them because they used to keep coming to the canteen.
Singh, the former DGP of UP, said they were only identifying people from the videos shown to them and “unless the witness was present at the spot, an eyewitness, it did not cut much ice”.
Rai, the retired IPS officer from Haryana said, “You have to connect the video to the place of occurrence. Then, an expert has to match the profile of the person with the profile in the video which shows they are participating in the violence.”
The chargesheet said police officers sustained “life-threatening injuries” because of the stone-throwing and the pushing and shoving on 13 December, and at least 15 of them were sent to the hospital along with injured students.
Of the 20 police officers whose injuries have been noted in the chargesheet, as per the medico-legal cases (MLCs) in the chargesheet, only one is listed as “grievous”, one says “opinion reserved”, while the others are “simple”.
Of the 24 students, the MLCs showed six injuries were said to be grievous.
Where Was Section 144 In Place?
FIR 296 invoked 15 sections of the Indian Penal Code, 1860 and two of the Prevention of Damage to Public Property Act, 1984.
These are 143 (unlawful assembly), 147 (rioting), 148 (rioting, armed with a deadly weapon), 149 (member of unlawful assembly guilty of offence committed in prosecution of common object), 186 (obstructing public servant in discharge of public functions), 353 ( assault or criminal force to deter public servant), 332 (voluntarily causing hurt to deter public servant), 333 ( voluntary cause grievous hurt to deter public servant) 308 (attempt to commit culpable homicide), 427 (commits mischief and thereby causes loss or damage to the amount of Rs 50,000), 435 (mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause, damage to any property to the amount of 100,000 rupees or upwards), 323 ( punishment for causing voluntary hurt), 341 (wrongfully restraining a person), 120B/34 criminal conspiracy/acts done by several persons in furtherance of the common intention of all.)
The original complaint in the FIR, which appears in the first chargesheet from April 2020, said the police announced and wrote in a banner that section 144 was being imposed “here” (yahan), and the same was written on a banner.
“The SHO and various police officers with the help of loud hailer in a loud voice warned the protesters that their protest is getting violent which is illegal and their assembly is being declared an unlawful assembly and there can be a legal inquiry against them,” reads the complaint.
“The warning written on two banners: You are all informed that 144 is in force here (yahan). You are all requested that you don’t have permission to assemble and protest in this district (iss chetre mein)”, reads the complaint. “On the orders of senior officers present, tear gas shells were used to disperse the unlawful assembly and stop them from going to Parliament.”
In the chargesheets, the word “yahan” changed to “vahan” (there) and iss to uss chetre mein (in that district), but they still say that tear gas shells were used to disperse the “unlawful assembly”.
In 12 almost identical police witness statements between 14 December 2019 and 21 December 2019, the witnesses say yahan. On 24 December 2019, the SHO, who was the complainant in the case, gave a statement saying that due to a "typographical error" the wahan became a yahan in the complaint and that section 144 was in place in the New Delhi district on 13 December 2019. In six police statements from 24 December 2019 and 31 January 2020, the witnesses say “wahan”.
“Yahan par is a little miscommunication type of thing,” said SPP Pandey. “It wasn't yahan par.’”
A written order imposing section 144 in New Delhi district is not part of the chargesheets for FIR 296.
The police have to show there was an existing order and that it was communicated to the people present at the spot, and they adopted the procedure, Rai, the retired IPS officer said. The inconsistencies were for the police to explain.
“It will be discussed in court,” said Rai. “If they can explain it properly and it is reliable, or if it is concocted and will not be believed.”
Referring to the police statements that said section 144 was imposed in Jamia before the complaint made a statement about the typographical error, a defence lawyer said, “That means that you have either copied the same statement or you have made the same error again and again.”
SPP Pandey told Article 14 that the prosecution would produce the prohibitory order for Delhi.
“In the trial, we will prove it,” he said.
Infirmities In Disclosure Statements
In the chargesheet dated 12 January 2021, the police said the students, during the interrogation, admitted to having been part of the violence, even though the students say the opposite in the statements attributed to them.
One statement has a student saying he did not attend the protest and that he was not the person in the videos the police showed him.
A second statement has a former student at the time saying the police pulled him and other protesters and took them away to the Badarpur police station when the violence broke out and that he did not participate in any violence.
A third statement has a student saying the police took him away in a jeep when he tried climbing a police barricade and dropped him far away in Kalkaji, and he found out about the violence later.
A fourth statement has a student saying she climbed on a barricade because she could hear women on the other side where the police had detained them, but she did not participate in any violence. She knew some of the people in the protest but did not have any connection with them, and she did not recognise anyone in the videos she was shown.
The statements also have the accused say they did not know most people in the crowd, they recognised a few of their co-accused in the videos they were shown by the police, and some only recognised others because they had become “famous” during the anti-CAA protests.
The statements with students saying they were present at the protest (not the violence) would explain why their mobile location was at the scene of the incident: the second piece of evidence the police cite.
In a police questionnaire, Tanha said that “he was detained by police before the start of riots at Jamia Nagar university and taken to police station Badarpur”.
Anger At Delay & Adjournments
After appearing on 13 December 2022, SPP Pandey sought adjournment twice, even as defence lawyers submitted written arguments last year with the hope of moving along the proceedings.
In the hearing before judge Arul Verma on 23 January 2023, Pandey appeared via video conference and sought adjournment because the investigating officer (IO) in the case, Inspector Mintoo Singh, was on Republic Day parade duty.
Defence lawyers protested the delay caused by the adjournments. “It was submitted time and again, Ld. Spl PP (Madhukar Pandey) for state has sought adjournments and are not concluding arguments,” Verma wrote in his order.
Noting that “ample opportunities have already been granted to the state to lead arguments” and that both the IO and DCP have appeared to assist the prosecutor, the judge, “in the interest of justice”, granted the state “one last opportunity” to conclude arguments.
The next hearing is on 3 February 2023.
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(Betwa Sharma is managing editor of Article 14.)