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Systemic delays in charging accused mean denials of justice & freedom: Delhi lawyers

Karuna John 30 Jul 2020

delhi police

Box: UPDATED INFO ON DELHI RIOT CASES  

These are the figures released by police

  • Arrested: 1430. 

  • Muslims Arrested: 700 

  • Hindus Arrested: 630 

  • FIR registered: 751

  • Chargesheet filed: 200 

  • Number of dead: 53 

  • Muslims dead:  40 

  • Hindus dead: 13

(This information was given to the Court in the proceedings in Ms Brinda Karat's case)

 

The February 2020 targeted violence in Delhi has drawn much attention and scathing conclusions from the Delhi Minorities Commission. The Delhi police has been accused of using the restrictions in free movement caused by the Covid 19 Pandemic imposed lockdown of cracking down on peaceful protesters (Anti CAA/NPR/NRC 2019) and using this “opportunity” to brutally silence dissent.

Now, RTI replies on queries related to arrests, FIRs and chargesheets have raised further questions. Replies to an RTI application by lawyer A. Mohamed Yusuff before the Public Information Officer (PIO) cum Addl. Deputy Commissioner of Police, North-East District of Delhi have revealed shocking numbers: 1,142 arrests were made, but only 171 cases are in court so far. This story may be read here

What are the implications of these figures? Sabrangindia spoke to lawyers to find out.

According to other senior lawyers that SabrangIndia spoke to, a chargesheet can also have multiple people named as accused. The delays arise when the courts take time to take cognisance of these. Many say they have seen a large number of cases from North East Delhi when the courts have not yet taken cognisance of multiple charges against several accused. It is only once the court formally summons the accused, gives them copies of the chargesheet that the trial can begin, simply filing a chargesheet is not enough. Besides, these delays in the trial is a major disadvantage for those named as accused. At the moment most delays are being blamed on the Covid-19 lockdown, said a lawyer adding that this was leading to not just confusion but a denial of justice.

Rebecca John, one of the most prominent criminal lawyers in India says, “in a large number of cases when charge sheets have been filed courts have not yet taken cognisance. This further delays the trial and works to the disadvantage of the accused.”

Another  senior lawyer who did not want to be named said, “an FIR is only a complaint in a cognisable offence, pending investigations. The police have to file a charge sheet within 90 days, when the accused is in custody. If the accused is not arrested or has been granted bail, there is no such time limit.”

According to M. R. Shamshad, Advocate, Supreme Court who was a part of the team that authored the Delhi Minority Commission report, “most cases get discharged because of delay…”  He said that cases get dismissed if the “proper evidence against the accused is not placed on record.”

He said that some of the information that advocate Yousuff was referring to has been available in the public domain but that it remains limited. “The Delhi Police has not remained transparent and has taken the view that the facts should not come out in public. This hits upon the entire criminal justice process. In which direction is the justice system going?”

Names of accused named in FIRs are required to be made public under law, save those exceptions outlined by the Supreme Court. Names cannot be disclosed in terror cases, insurgency cases, sexual offences, and pocso cases. Even this norm is not cast in stone. As a senior lawyer pointed out, names of accused are often disclosed even in terror cases, and even sexual offence cases when the accused are adults.

Senior lawyers also explained how such delays in disclosure tire out  the undertrial prisoner financially, physically and emotionally. “People give up if investigations on an FIR are not completed even after three visits to jails… Even lawyers who invest time and expertise pro bono can be on the verge of giving up,” said another lawyer.

This  sort of delay is especially marked in cases related to communal violence, says Shamshad, giving examples of the targeted 2013 Muzaffarnagar violence and the 2002 Gujarat pogrom before that. “Muzaffarnagr started with Shahnawaz being killed, and Sachin and Gaurav being killed in retaliation. Killers of Gaurav and Sachin were convicted. But killers of Shahnawaz got bail and nothing has happened then on…,” he recalled.

SabrangIndia had earlier reported 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 arrested. The petition was filed by senior leader of the CPI (M) and member of the polit bureau, Brinda Karat who 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.”

Karat had also sought 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.

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.

A high level Fact-Finding Committee, appointed by the Delhi Minorities Commission (DMC) to investigate the communal riots that ravaged neighbourhoods in North-East Delhi in February 2020, had also revealed the role of Delhi Police, and local right-wing politicians in instigating the violence. SabrangIndia was the first to report those findings. His DMC report states that this indicates that the Delhi Police “failed to take the first and most immediate preventive step needed to avoid violence from arising and protect life and property.”

The report is based on multiple testimonies collected by the fact finding teams where each survivor has shared reports of police inaction, even as they kept calling emergency numbers, and seeking help from the police patrolling the area. The police “refused saying they had no orders to act,” said the citizens. This fact finding team has stated, “The failure to prevent violence was not due to individual or sporadic breaches, but was a pattern of deliberate inaction over several days. The Delhi Police failed to exercise its prohibitory powers, under the Delhi Police Act, 1978 which enable the Commissioner of Police to promulgate orders prohibiting the carrying of weapons and arms, and the assembly of persons as “necessary for the preservation of public order”.” “Most victims of the religious minority have stated stories and put forth illustrations reflecting religious bias against them, inasmuch as being treated as a separate and distinct ‘community’ rather than citizens of the country,” it stated.

The report of the Delhi Minorities Commission(DMC) has now been forwarded to the authorities, but it is not known if any action has been taken based on it. “They should act upon it. Serious irregularities can be corrected. If the process is moving in the right direction, overall, then delays can become irrelevant, but not if the process itself is not moving in the right direction,” added advocate Shamshad.

He has first hand knowledge as he has been helping riot victims pro bono, “I have been chasing the courts of magistrates. One petition has been placed before the judge four times, yet no order has been passed yet…”

It is these delays and discrepancies in the due process of law that leave the motivations of the authorities and police open to criticism. Worse, they can mean the loss of faith in the process of justice itself.

 

Related:

Delhi HC again adjourns petition about police accountability for ‘indiscriminate’ arrests: Justice delayed?

North-East Delhi Riots: Minorities Commission investigations reveal role of Delhi Police, politicians

Over 2,000 people Brought in for violence : Delhi Minorities Panel Chief

 

Systemic delays in charging accused mean denials of justice & freedom: Delhi lawyers

delhi police

Box: UPDATED INFO ON DELHI RIOT CASES  

These are the figures released by police

  • Arrested: 1430. 

  • Muslims Arrested: 700 

  • Hindus Arrested: 630 

  • FIR registered: 751

  • Chargesheet filed: 200 

  • Number of dead: 53 

  • Muslims dead:  40 

  • Hindus dead: 13

(This information was given to the Court in the proceedings in Ms Brinda Karat's case)

 

The February 2020 targeted violence in Delhi has drawn much attention and scathing conclusions from the Delhi Minorities Commission. The Delhi police has been accused of using the restrictions in free movement caused by the Covid 19 Pandemic imposed lockdown of cracking down on peaceful protesters (Anti CAA/NPR/NRC 2019) and using this “opportunity” to brutally silence dissent.

Now, RTI replies on queries related to arrests, FIRs and chargesheets have raised further questions. Replies to an RTI application by lawyer A. Mohamed Yusuff before the Public Information Officer (PIO) cum Addl. Deputy Commissioner of Police, North-East District of Delhi have revealed shocking numbers: 1,142 arrests were made, but only 171 cases are in court so far. This story may be read here

What are the implications of these figures? Sabrangindia spoke to lawyers to find out.

According to other senior lawyers that SabrangIndia spoke to, a chargesheet can also have multiple people named as accused. The delays arise when the courts take time to take cognisance of these. Many say they have seen a large number of cases from North East Delhi when the courts have not yet taken cognisance of multiple charges against several accused. It is only once the court formally summons the accused, gives them copies of the chargesheet that the trial can begin, simply filing a chargesheet is not enough. Besides, these delays in the trial is a major disadvantage for those named as accused. At the moment most delays are being blamed on the Covid-19 lockdown, said a lawyer adding that this was leading to not just confusion but a denial of justice.

Rebecca John, one of the most prominent criminal lawyers in India says, “in a large number of cases when charge sheets have been filed courts have not yet taken cognisance. This further delays the trial and works to the disadvantage of the accused.”

Another  senior lawyer who did not want to be named said, “an FIR is only a complaint in a cognisable offence, pending investigations. The police have to file a charge sheet within 90 days, when the accused is in custody. If the accused is not arrested or has been granted bail, there is no such time limit.”

According to M. R. Shamshad, Advocate, Supreme Court who was a part of the team that authored the Delhi Minority Commission report, “most cases get discharged because of delay…”  He said that cases get dismissed if the “proper evidence against the accused is not placed on record.”

He said that some of the information that advocate Yousuff was referring to has been available in the public domain but that it remains limited. “The Delhi Police has not remained transparent and has taken the view that the facts should not come out in public. This hits upon the entire criminal justice process. In which direction is the justice system going?”

Names of accused named in FIRs are required to be made public under law, save those exceptions outlined by the Supreme Court. Names cannot be disclosed in terror cases, insurgency cases, sexual offences, and pocso cases. Even this norm is not cast in stone. As a senior lawyer pointed out, names of accused are often disclosed even in terror cases, and even sexual offence cases when the accused are adults.

Senior lawyers also explained how such delays in disclosure tire out  the undertrial prisoner financially, physically and emotionally. “People give up if investigations on an FIR are not completed even after three visits to jails… Even lawyers who invest time and expertise pro bono can be on the verge of giving up,” said another lawyer.

This  sort of delay is especially marked in cases related to communal violence, says Shamshad, giving examples of the targeted 2013 Muzaffarnagar violence and the 2002 Gujarat pogrom before that. “Muzaffarnagr started with Shahnawaz being killed, and Sachin and Gaurav being killed in retaliation. Killers of Gaurav and Sachin were convicted. But killers of Shahnawaz got bail and nothing has happened then on…,” he recalled.

SabrangIndia had earlier reported 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 arrested. The petition was filed by senior leader of the CPI (M) and member of the polit bureau, Brinda Karat who 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.”

Karat had also sought 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.

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.

A high level Fact-Finding Committee, appointed by the Delhi Minorities Commission (DMC) to investigate the communal riots that ravaged neighbourhoods in North-East Delhi in February 2020, had also revealed the role of Delhi Police, and local right-wing politicians in instigating the violence. SabrangIndia was the first to report those findings. His DMC report states that this indicates that the Delhi Police “failed to take the first and most immediate preventive step needed to avoid violence from arising and protect life and property.”

The report is based on multiple testimonies collected by the fact finding teams where each survivor has shared reports of police inaction, even as they kept calling emergency numbers, and seeking help from the police patrolling the area. The police “refused saying they had no orders to act,” said the citizens. This fact finding team has stated, “The failure to prevent violence was not due to individual or sporadic breaches, but was a pattern of deliberate inaction over several days. The Delhi Police failed to exercise its prohibitory powers, under the Delhi Police Act, 1978 which enable the Commissioner of Police to promulgate orders prohibiting the carrying of weapons and arms, and the assembly of persons as “necessary for the preservation of public order”.” “Most victims of the religious minority have stated stories and put forth illustrations reflecting religious bias against them, inasmuch as being treated as a separate and distinct ‘community’ rather than citizens of the country,” it stated.

The report of the Delhi Minorities Commission(DMC) has now been forwarded to the authorities, but it is not known if any action has been taken based on it. “They should act upon it. Serious irregularities can be corrected. If the process is moving in the right direction, overall, then delays can become irrelevant, but not if the process itself is not moving in the right direction,” added advocate Shamshad.

He has first hand knowledge as he has been helping riot victims pro bono, “I have been chasing the courts of magistrates. One petition has been placed before the judge four times, yet no order has been passed yet…”

It is these delays and discrepancies in the due process of law that leave the motivations of the authorities and police open to criticism. Worse, they can mean the loss of faith in the process of justice itself.

 

Related:

Delhi HC again adjourns petition about police accountability for ‘indiscriminate’ arrests: Justice delayed?

North-East Delhi Riots: Minorities Commission investigations reveal role of Delhi Police, politicians

Over 2,000 people Brought in for violence : Delhi Minorities Panel Chief

 

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