New Delhi: “There are numerous flaws in such theory building and many (sic) guesswork”. There are “assumptions and interpretations” that are “questionable”.
These were some of the observations a judge made in an order passed on 1 April 2025 about the conspiracy case filed by the police after the 2020 Delhi riots, aimed at identifying those responsible for the communal violence that broke out in northeast Delhi in February that year.
The additional chief judicial magistrate (ACJM) of the Rouse Avenue Court, Vaibhav Chaurasia, said that the chargesheet—the record of the investigation—contained “opinions” and “academic jargon” and several police interpretations could be viewed differently.
The riots claimed 53 lives, and the observations are significant because, even though a lower court magistrate made them and they are not binding on other courts, this marks the first instance in three years since comments by the Delhi High Court that a judge has criticised the police case, questioning their allegations and the rationale behind them.
The magistrate made these observations in his order dated 1 April 2025 while directing the police to examine further a five-year-old complaint lodged by Mohammed Ilyas from Yamuna Vihar against Delhi law minister Kapil Mishra.
Ilyas accused Mishra of obstructing the road and damaging carts owned by Muslims and Dalits on 23 February in northeast Delhi.
The news regarding the order to probe Mishra received significant coverage, while the magistrate's comments on the alleged larger conspiracy case—FIR 59—did not.
In response to the complaint, the police presented the chargesheet and evidences from FIR 59, which included WhatsApp messages from the alleged conspirators, to the judge, emphasising their stance that it was not Mishra but rather those participating in the protests against the Citizenship Amendment Act (CAA), 2019, who instigated the riots.
The magistrate’s observations that the case has “numerous flaws,” “guesswork,” and “assumptions” support Article 14’s reporting that law enforcement has constructed a case based on assumptions and conjectures, aiming to attribute the riots to those opposing the CAA despite scant evidence.
Although three-quarters of the victims were Muslim and the community experienced greater property loss, most of those accused were also Muslims, including the individuals protesting against the CAA.
The magistrate said that the police case did not reveal the “immediate cause” behind the riots and did not indicate what sparked the unrest.
“Absolutely evasive”, lackadaisical”, “callous”, “casual”, “farcical,” “painful to see,” and “misusing the judicial system” are some of the things that Delhi lower court judges have said about the police investigation into Delhi riot cases registered under criminal provisions, Article 14 reported in September 2021.
However, such criticism is uncommon in cases like FIR 59, which involve provisions of India's counterterrorism law, the Unlawful Activities Prevention Act, 1967, where lower court judges hesitate to question the police’s version of events.
The police quickly challenged the order, and a higher court granted a stay on 9 April 2025.
Not Communal
Of the 18 who have been named in the chargesheet for FIR 59, 16 are Muslim.
Many of them have not been granted bail despite a seeming absence of evidence, resulting in them being undertrial prisoners for four to five years, even though the Supreme Court has said (here, here and here) that bail should be the standard and imprisonment the exception, even in serious allegations such as terrorism and money laundering.
Magistrate Chaurasia questioned the police narrative of the anti-CAA demonstrators as communal, while noting that Mishra (accused number two) was indeed so.
“Though the prosecution has forwarded that under the garb of secular, communal agendas were undertaken it might surprise that none of the messages placed before me reveals single anti Hindu rhetoric even in their personal conversations,” said Chaurasia in written observations. “While the accused number two addresses the opposite groups as ‘dusari taraf Muslim’ (the other side).”
Supreme Court lawyer Shahrukh Alam said that the judge indicated that Mishra had made comments of a communal nature, whereas the opposing party had not done so.
Order Stayed
Mishra, a former legislator of the Aam Aadmi Party who joined the Bharatiya Janata Party (BJP) in 2019, was made the minister for law and justice after the BJP won the February 2025 assembly election.
Chaurasia’s order was widely expected to be stayed, and sessions judge Kaveri Baweja granted a stay until the following hearing on April 21, when the proceedings were further scheduled for May 5.
Baweja, known for rejecting bail applications for former deputy chief minister Manish Sisodia and former chief minister Arvind Kejriwal in the Delhi liquor scam case, was named registrar (vigilance) of the Delhi High Court earlier this week.
The police argued that the order overstepped the magistrate’s authority and was issued despite his knowledge that the conspiracy case was already under consideration in a special court presided over by a sessions judge.
The police's reasoning is unclear because the magistrate ordered further investigation following Mohammad Ilyas's complaint that specifically accuses Mishra of destroying carts owned by Muslims and Dalits in northeast Delhi. This allegation is not included in FIR 59, which addresses the broader issue of the individuals responsible for the riots.
It was the police who responded to Ilyas’s complaint by submitting FIR 59 to the magistrate.
On the police's reticence to file an FIR against Mishra, even for petty offences, Alam said that the very specific allegations against Kapil Mishra dilute the "conspiracy theory."
“The allegations suggest that he was actually mobilising against the protestors and also indulging in targeted violence against Muslims and Dalits,” said Alam. “That provides a very specific and visual image of the actual violence, which contrasts with the one in circulation thus far through FIR 59. It is a visual shift from the narrative provided thus far, violence emanated from the protestors, or that the protestors provoked otherwise reasonable people into violence, without any extraneous influences.”
Article 14 reached out to special public prosecutor Amit Prasad via call and a WhatsApp message, and we will update the copy if he responds.
Ranjay Atrishya, the Delhi police's assistant commissioner of police and public relations officer, did not comment on FIR 19, saying the matter was with the court. Atrishya said a stay meant the magistrate’s order had “some flaws.”
Mehmood Pracha, Ilyas’s lawyer, argued that the stay order was “invalid” since his client was not given an opportunity to respond.
The stay pertains to the operative part of the magistrate’s order regarding Mishra, which involves further investigation, but not on the court's observations. However, observations are not legally binding, but the observations by a judicial magistrate can have persuasive value in legal arguments.
Happened Before
Three years ago, the police sought a stay from the Supreme Court right after the Delhi High Court had granted bail to three anti-CAA demonstrators, stating that there was no prima facie evidence of terrorism against the defendants, that organising chakka jams (blocking public roads) did not constitute an act of terror, and that the police had conflated terrorism with protest.
“The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions,” said a division bench of Siddharth Mridul and Anup Jairam Bhambhani.
“Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a 'terrorist act' or a 'conspiracy' or an 'act preparatory' to the commission of a terrorist act as understood under the UAPA,” they wrote.
In reaction to a police request for a stay, the Supreme Court upheld the bail that the high court had granted to three accused in the so-called conspiracy case, but clarified that the high court ruling should not be considered precedent.
In May 2023, the Supreme Court dismissed the Delhi police's petition to contest the bail, stating that the three defendants had been free for two years. This allowed their co-accused to seek bail on the grounds of parity (equal treatment).
The Supreme Court said it had not assessed the accuracy of the high court's interpretation of the anti-terror legislation. It noted that it had already mentioned two years prior that the ruling did not serve as a precedent.
"The impugned order is an extremely elaborate order on bail interpreting provisions of UAPA Act. In our view the only issue to be examined was if in the factual scenario, accused is to be granted bail or not. While issuing notice we observed that the impugned judgment shall not be treated as a precedent,” the Supreme Court said.
Lack Of Evidence
The police case is that the anti-CAA movement was a facade for planning the riots by setting up protest sites in Muslim areas of the city and then organising chakka jams to trigger the riots.
Crippled by the absence of evidence—whether physical, forensic, or medical—that can establish a link among all the suspects, their participation in the violent events that transpired on the ground, or their association with the weapons and rioters responsible for the chaos—the police have produced numerous statements from protected (anonymous) witnesses, most of which appear to be similar and improved upon.
The police have linked various WhatsApp groups that were coordinating the protest and have generated extensive WhatsApp message records, but they don’t reveal a conspiracy to incite violence, as Article 14 reported in March 2022.
Umar Khalid, the alleged mastermind, posted four messages in the WhatsApp group, none incriminating.
It is not clear why certain anti-CAA demonstrators and others communicating in these groups, as well as those mentioned by unnamed sources, faced accusations while others did not.
‘Academic Jargon’
The magistrate made the following observations about the investigation into FIR 59.
“Once these flaws are outlined, therefore the theory goes off and so does the lens with which prosecution seeks to interpret the facts,” the magistrate wrote.
“One of the characteristics is opinion, with academic jargon has been presented under the garb of facts wherein the skill of differentiation has to come into play wherein the wheat can be separated from the chaff.”
On the prosecution’s point that protest sites were populated by Muslim women with the expectation that the police would exercise restraint, the magistrate said that he was at “odds to believe” that a community preparing for mass level violence would make a plan that would imperil women from their community.
“Such kind of theories propounded, particularly by prosecution, by use of intellect and with academic jargon, the undersigned specifically believe that it only taints the look at the fact. The Court would not align with any kind of production of knowledge rather would look at the facts untainted by the theories of the prosecution, and this is being made outrightly clear.”
“I had gone through the theory propounded by prosecution regarding the riots. If one goes through it in detail, one will fail to find what was the immediate cause for rioting.”
Arbitrary Application Of The Law
The question of Mishra's involvement in the Delhi riots remains under investigation, provided that the police conduct an impartial inquiry.
However, the ongoing reluctance to file an FIR when the law requires it in alleged cognisable offences indicates an arbitrary application of the law.
Mishra has faced increased public scrutiny due to statements he made shortly before the outbreak of violence on 23 February 2020, in an area where individuals for and against the CAA were assembling and tensions were escalating.
During a gathering at the Maujpur metro station, Mishra issued a warning to the police: If the roads remain blocked until US President Donald Trump departed (he was in India on 24-25 February), he and his supporters would disregard the police and take to the streets.
Mishra issued the warning while the Delhi police commissioner for north-east Delhi, Ved Prakash Surya, stood next to him in riot gear.
Captured on video and presented in court, these comments led a high court judge to strongly urge the police on 26 February to register a criminal case against Mishra and three other BJP leaders who had made communal statements during their campaign for the Delhi elections just weeks before.
In the sole questioning conducted by the police regarding Mishra's comments, which occurred four months later in July 2020, Mishra referred to the anti-CAA demonstrators as “Muslim” in his responses.
The magistrate highlighted this.
“…accused no. 2 has not framed his statement under pro CAA or anti CAA but dusri taraf Muslim (the other side were Muslim) with the district of us and they, wherein them is dusri taraf Muslim,” he wrote.
During questioning, Mishra said, “Muslims had fostered a climate of fear and intimidation.”
In clarifying his statement made on 23 February 2020, “Trump ke jaane tak toh hum shaanti se jaa rahen hain, lekin uske baad hum aapki bhi nahin sunege” (We will proceed peacefully until Trump is here, but after that, we will not heed you if the roads aren’t cleared), Mishra said during questioning that he meant “….raaste na khulne ki surat mein hum bhi dharne par baith jayenge” (if the roads remain blocked, then we will also join in protest).
The magistrate said: “The court has no hesitation to hold that it is not a request or an assertion but an ultimatum.”
The magistrate ordered the police to question the officer, Surya, whom the complainant, Ilyas, claimed had intimidated anti-CAA demonstrators.
In contrast, Umar Khalid's speech opposing the CAA was delivered a week before the riots in Amravati, a town 1,150 km south of Delhi in Maharashtra.
Khalid’s speech has been repeatedly played in courtrooms by both the prosecution and the defence. It has always been available to the public, containing no communal content or anything that would not fall under the protection of free speech laws in India.
Another accused, Sharjeel Imam, delivered speeches over a month before the riots and was incarcerated for a month before the violence began. While many people found Imam's remarks divisive and contentious, they would still be safeguarded by free speech laws and the judicial precedents set by the Supreme Court regarding constitutional rights.
Last month, during a discussion with Article 14 on the unequal treatment of individuals under the law, Supreme Court lawyer Shahrukh Alam said: “Why does he (Mishra) get away with saying what can put other people, Muslims especially, in jail for five years. How can you treat speech entirely differently depending on who is saying it?”
When we inquired about the importance of the magistrate’s remarks, Alam stated that they demonstrated “the entire construction of 59 fails to consider the immediate trigger—the clear counter-mobilisation that was occurring. Additionally, it does not genuinely address the issue of who instigated the violence.”
Although the magistrate doesn't explicitly state it, Alam said that his observation raises questions about the identity of the perpetrators and whether they had any connection to the alleged conspirators.
(Betwa Sharma is the managing editor of Article 14.)
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