The Delhi high court has adjourned, to June 16, hearing on a writ petition demanding that section 41 (c) of the Code of Criminal Procedure (CRPC) that compels the police, under law, to make public names and details of persons detained or arrests. The petition filed by senior leader of the CPI (M) and member of the polit bureau, Brinda Karat in the Delhi High Court came up for hearing, after a long duration, yesterday. Arguments took place for a substantial time on May 12, with the petitioners’ advocate, Kirti Singh assisted by Tara Narula appearing for Ms Karat and arguing for the need for speedy intervention by the high court. However, the court adjourned the matter to June 16. In the hate speech case, advocates Tara Narula and Adit Pujari were present.
In the petition filed before the Delhi high court in later February and heard first on March 6, 2020, the petitioner had sought specific directions from the court to get the Delhi police to “ensure compliance with the provisions and procedure prescribed under CrPC, in particular, Sections 41B and 41C while making arrests in all the cases arising out of violence that occurred in North-East Delhi February 24, 2020 onwards, as well as upload the FIRs registered in relation to the said violence on the police website.”
Two or three separate issues have been raised in the two different petitions filed by Karat. The first was seeking directions to register FIRs against leaders of the Bharatiya Janata Party (BJP) for inflammatory speech ((that is under section 156 (3) of the Code)). The second filed later for strict adherence to sections 41(B) and (C) of the Code. The first petition, though filed within a week of the incidents, before a Magistrate and thereafter in the high court (when the Magistrate rejected the plea) was stymied because other activists rushed in, both in the High Court and then in the Supreme Court despite the pendency of this matter, here. That petition now awaits disposal of the other matters with similar prayers filed later.
In the second petition, seeking transparency in the manner of arrests and detentions and strict compliance of sections 41(B) and (C), despite the fact that the Delhi police (under the direct jurisdiction of the Ministry for Home Affairs, MHA, India) had been directed to file a reply by March 12, 2020, close to two months down, no details have been made public. Now, it is only on June 16, 2020 that the Delhi police will (it is hoped) provide the details sought. This prevarication by the authorities unfortunately makes a mockery of the plea itself, given the all-out arrest spree that the Delhi police have been indulging in, especially since the lockdown.
Prior to filing of the petition, Ms Karat had also sent a letter dated March 2, 2020 to the Commissioner of Police, Delhi in relation to non-compliance of Section 41-C CrPC. Not only did she not receive a response, but the non-compliance has continued.
In this petition that relates crucially to the administration of justice and law and order and public interest and specifically the fundamental rights of the arrestees as enriched under Article 21 and 22 of the Constitution, the prayers are a) for speedy hearing; b) directions that copies of FIRs registered pursuant to the violence in North-east Delhi be uploaded on the Delhi Police website; and c) directions that copies of the FIR, remand application, orders of remand and grounds of arrest, and copy of charge-sheets be supplied through e-mail/whatsapp/post to the families and counsels of accused persons; and d) Call for a status report disclosing the names and numbers of persons detained and arrested by the Delhi Police in relation to the pogrom for the duration of the lockdown i.e. since February 24, 2020.
Grounds and Pleas in the Petitions
The petition related to non- implementation of transparency provisions mandated by Indian criminal law (sections 41(B) and (C) of the Code), the petition argues that in the situation of the lockdown, when there is limited access to Courts, unavailability of lawyers, it is crucial and critical that the Delhi Police follows the law of the land, and complies with transparency provisions of Cr.P.C. with due regard for the health, safety and fundamental rights of the concerned persons.
It is clear, the petition argues that, following and during the investigation into the Delhi riots cases, people are suffering and are unable to avail their rights which are available to them at the stages of summoning, detention, arrest and remand due to the shutdown of courts and limited availability of lawyers, other than legal aid counsels.
Some of the details recounted in the petition tell a gory tale. Persons in the area have also given accounts of being detained from their homes and neighborhoods without any information or notice. In a few cases, the person’s family members/relatives were detained for hours and threatened till the time the person whom Delhi police sought to arrest did not produce himself before them. The petition quotes from several news reports and volunteers have reported that arrests have been made without giving any prior notice. Further, either no information or misleading information was given to the family members, leading them to make repeated visits to the police station to obtain information about their detained/arrested relatives, often to no avail.
Relying on articles published in The Indian Express, The Hindu and The Quint, the petition narrates and describes the fear and confusion in the lives of North East Delhi people due to continuous arbitrary arrests by the Police.
Among the individual instances cited in the petition are the following:
- F***** Khan, from Mustafabad, who works as a driver in Delhi, was arrested during the lockdown on April 2, 2020. His wife reported that when she and her husband F**** Khan were not present at their residence, the Police entered their house and took one of their sons to Dayalpur police station about which they came to know from their neighbors. When A**** went to the police station with a few other women, the police told her they would release her son only if her husband (F****) reach the police station and consequently when F**** arrived at the Police station, he was arrested.
- A**** (aged 20 years), a resident of Mustafabad, was arrested on April 7. His brother I*** stated that the policemen from Dayalpur called and said they just want to a few questions but when they went, there were other boys too. They took him into a room and that was the last they heard from him. A*** brother, I****, also stated that their family is clueless in which jail he is lodged because of the lockdown.
- F*****, resident of Chand Bagh, who is a software engineer stated that the Police took away his brother without any notice and he has not seen his brother since the police took him for questioning on March 31. His family was not having any clue about it and later on they came to know that he was arrested as he was featured in a video.
- M**** (aged 21 years) from Bhajanpura stated that the police took away her brother on the pretext of asking some questions and since then she and her family have not seen him. M**** further told that when the police visited the residence, her brother, who is working as a welder, had gone out to buy medicines. The next day (on April 11), when her brother went to the police station around 11 a.m. He did not return till 7 p.m. Therefore, when their family went to the police station, they were told that he (M****’s brother) will not be released as he was spotted on the riots video. M**** further stated that she is worried about the well-being of her brother inside jail, more so in view of the ongoing pandemic, as he had received bullet wound on his back during the riots and has other medical conditions too.
(These examples have been published in The Hindu on April 17 and 27, 2020.
The petition makes a strong and vociferous argument for the strict and immediate application and implementation of Sections 41(B) and (C) of the CrPC as the “confusion and panic among the family members and relatives of the arrestees has been increased due to the non-compliance with these sections by police officials.”
Worse still, the arresting officers are reportedly often dressed in civilian clothes. The arrest memo is not prepared at the time of arrest in terms of Section 41- B(b). Police stations do not put up the list of arrested persons as required under Section 41-C Cr.P.C, and sometimes claim to have no knowledge of the case at hand stating that the arrest was perhaps by Crime Branch officials. This arbitrary and illegal behaviour among sections of the Crime Branch and Special Branch officials in Delhi is testimony to how the Police is misusing the situation of lockdown and making “arrests of the people mechanically by pick and choose method without following due course of law and procedure.”
What makes matters worse states the petition is the fact that, since the lockdown, all fresh remands of arrested persons are taking place in the jail complex itself. Hence, families of arrested persons are unable to obtain a copy of the FIR or any information even at the time of first production. Hence, there is an urgency in having the FIRs and remand orders available in the public domain, due to the large-scale arrests taking place.
Police and MHA Gameplan
A close study of the actions of the Delhi police under the direct influence of the MHA reveals that apart of this manner of illegal and non-transparent arrests and detentions, are being carried out under certain omnibus FIRs. Under these omnibus criminal compliants, persons have been arrested during the lockdown. These are:
- FIR No. 60/20 PS Dayalpur (being investigated by Crime Branch) dated February 25, 2020, registered under sections186/353/332/323/147/148/149/336/427/307/ 302 IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984.
- FIR Nos. 57/20 and 58/20, PS Dayalpur dated February 24, 2020registered under sections 147/148/149/427 IPC and Sections 3 of the prevention of Damage to Public Property Act, 1984.
- FIR No. 84/20 PS Dayalpur (being investigated by the Crime Branch) dated March 1, 2020, under sections 147/148/149/427/436/302 IPC and sections 3/4 of the Prevention of Damage to Public Property Act, 1984.
- FIR No.103/20 PS Dayalpur dated March 3, 2020, under sections 147/148/149/436 IPC and
- FIR No. 104/20 PS Dayalpur dated March 4, 202 under sections 147/148/149/427 IPC
- FIR No.105/20 PS Dayalpur dated March 4, 2020, under sections 147/148/149/427/436 IPC.
Given that most of the ‘malafide’ arrests are under these omnibus FIRs, the petitioner has urged the HC to call for these FIRs.
Relying on a judgement of the Supreme Court in Youth Bar Association of India v. Union of India and Others (2016) 9 SCC 473, the petition emphasises the importance of the accused to have a copy of the FIR for redressal of his grievances:
(d). The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and file appropriate application before the Court as per law for redressal of his grievances…
e) The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post. In case the States where District Magistrate has a role, he may also assume the said authority. A decision taken by the concerned police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional Magistrate”.
Given this jurisprudential assessment on the issue by the Supreme Court, the petition avers that “the decision to not upload an FIR on the ground of its sensitive nature must be taken by the concerned officer and duly communicated to the jurisdictional magistrate. Such decision cannot be taken in an omnibus manner for all the riot related FIRs. Further, in the present case the failure to inform the jurisdictional magistrate of the decision would render the process illegal/nugatory. The arrests in Delhi riot cases are being carried out in violation of the guidelines of the Hon’ble Supreme Court in D.K Basu v. State of Bengal and Sections 41A, 41B, 41C, 41D which were inserted vide Code of Criminal Procedure (Amendment) Act, 2008.
Ms Karat’s petition also narrates the hearing in one of the riot related arrests, in FIR No 57/2020 of one of the accused “Shadab Alam” to demonstrate the utterly arbitrary manner of arrest in the Delhi violence cases. The bail application was filed in the Delhi High Court (Bail application No.755/2020). Though the bail application was dismissed on April 10, 2020, the order of the court speaks “of the unjust andarbitrary actions taken by the Police in riot related cases. In para 9 of the said order, this Hon’ble Court recorded that ‘There is undoubtedly a mystery surrounding the arrest of the petitioner and co-accused which is further fortified by the nature of injuries received by the petitioner as would be investigated in the course of events. It is also strange that even as per the prosecution, the petitioner and co-accused were arrested on the February 28, 2020 and produced before the Magistrate on the same day and no police custody remand was sought, nor was an application filed for conducting TIP by the other witness who was not present at the time of arrest. Statement of this witness recorded under Section 161 Cr.P.C. has also not been produced.”
Absence of Transparency
The absence of transparency in the conduct of the Police Officials in the riots related cases forms another crucial ground in this petition. During this period of lockdown, the Police Officials have already completed the investigation in the aforementioned FIR No.57/2020 and Charge sheet has been filed in this FIR on April 27, 2020 before the Karkardooma District Court in case of State v. Ajmat Ali & Ors. After taking the chargesheet on record (without taking cognizance), the Magistrate’s Court has posted the matter for hearing on June 11, 2020.
Given the long period in between during which the accused’s personal liberty is imperilled, the counsel for the accused had approached the concerned officer at the Dayalpur police station for a copy of the chargesheet which is his legal right under Section 173(7) Cr.P.C. However, no such copy has been furnished thus far.
Besides, in the same case, there are accusations of unlawful arrest and detention and police brutality that are also required to be investigated. Statements have been given by witnesses to corroborate these allegations, and complaints have been madeto the DCP, North-east as well as to the National Human Rights commission. On May 6, 2020, the NHRC has even directed the DCP (North-east) to investigate the complaint.
Without so much as investigating these complaints, the police (PS Dayalpur) have rushed to conclude investigations and file a charge-sheet.
The petition alleges that the “entire investigation by the police may be coloured and there will be serious apprehension of suppression of evidence in a case like this. Inthis scenario, it is extremely urgent that the complaints against the police be investigated, so that justice is seen to be done. The said case further brings out the importance of compliance with Section 41-B(b) Cr.P.C. as the failure to prepare arrest memo at the time of arrest raises serious concerns about the ante-dating of such document to cover-up the allegations of illegal detention.”
The Supreme Court, had on April 6, 2020 in the Suo Motu Writ Petition (Civil) No. 5/2020 titled ‘In Re: Guidelines for Court Functioning through Video Conferencing during Covid-19 Pandemic’, observed that “Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India. The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it.”
Interestingly, in the wake of the outbreak of the Corona Virus pandemic resulting in immobilization of public at large, and total stoppage of public transport, litigants would find it difficult to approach the Courts to vindicate their grievances, the High Court of Kerala had, on 25.03.2020 in WP (C) No. 9400 of 2020 directed that“given the present situation, arrests should be made only in cases where arrest is inevitable. It was further directed that Magistrates before whom an accused is produced shall consider whether judicial/police custody is needed or not, keeping in mind that bail is the rule, and jail the exception.”
While these attempts for a humane transparency in adjudication have come from some of the higher courts, it seems clear that the Delhi police, under the Indian home ministry, sees no need to follow due process of law. With the leeway of time granted to them by the Delhi high court despite the passage of over 75 days since the brute violence that hit north east Delhi, so far at least there are no signs of them being held accountable. Even by the courts.