Sahil Parvez & Anr. vs Government Of Nct Of Delhi & Ors.
2020 Latest Caselaw 2368 Del

$~13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of decision: 07.08.2020

+      W.P.(CRL) 1120/2020 & Crl.M.A. 9876/2020
       SAHIL PARVEZ & ANR.                                  ..... Petitioners
                           Through      Mr.Mehmood Pracha, Adv. with
                                        Mr.Shariq Nisar, Adv.

                           versus

       GOVERNMENT OF NCT OF DELHI & ORS.     ..... Respondents
                   Through  Mr.Chetan Sharma, ASG with
                            Mr.Amit Mahajan, CGSC, Mr.Rajat
                            Nair, SPP & Mr.Dhruv Pande, Adv.
                            for UOI.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         J U D G M E N T (ORAL)

The hearing has been conducted through video conferencing.

1. Vide the present petition, the petitioners prays as under:

a. Issue a Writ of Certiorari or any other Writ in the nature of

Certiorari quashing Order dated 08.07.2020 passed by the

Special CP (Crime & Economic Offences Wing) Sh.Praveer

Ranjan;

b. Issue a Writ of Mandamus or any other Writ in the nature of

Mandamus directing the respondents to produce all documents

relating to the appointment of all Special Prosecutors as referred

to in order dated 08.07.2020 passed by the Special C.P. (Crime &

Economic Offences Wing) Sh.Praveer Ranjan;

c. Issue a Writ of Quo Warranto or any other Writ in the nature of

Quo Warranto requiring the respondent no.4 Special C.P. (Crime

& Economic Offences Wing) Sh. Praveer Ranjan to show the

authority under which order dated 08.07.2020 was issued by him;

and

d. Direct respondent no.3 to initiate disciplinary inquiry against

respondent no.4 for passing illegal orders.

2. The Petitioners are aggrieved by the issuance of the aforesaid order

dated 08.07.2020 by Respondent No.4, as the said order has a direct bearing

on the investigation and adjudication of the criminal cases relating to deaths

of their immediate family members.

3. As alleged in the present petition communication dated 08.07.2020 by

respondent no. 4 has been issued to the investigating officers and teams

while the investigation pertaining to carnage that took place in North East

Delhi, is still underway. The said order was reported in an Article published

on 15.07.2020 by the Indian Express titled 'RESENTMENT IN HINDUS ON

ARRESTS, TAKE CARE: SPECIAL CP TO PROBE TEAMS'.

4. Mr.Pracha, learned counsel for the petitioner submits that such an

order was indeed issued by respondent no.4 as was confirmed by the office

of the Commissioner of Police, Delhi, in their response dated 15.07.2020 on

Twitter. The Article pertains to the ongoing investigation, arrests and

prosecution by the Delhi Police in cases relating to the carnage in North East

Delhi and inter-alia reports that order dated 08.07.2020 addressed to

subordinate officers heading probe teams and signed by respondent no.4

cites an "intelligence input" about the riot-related arrests of "some Hindu

youth from Chand Bagh and Khajuri Khas areas of Northeast Delhi" and

goes on to state that arrests of "some Hindu youth" has led to a "degree of

resentment among the Hindu community". The said order proceeds to direct

that "due care and precaution" must be taken while making such arrests.

The order also states that "community representatives are alleging that these

arrests are made without any evidence and are even insinuating that such

arrests are being made for some personal reasons." The order goes on to

name two Muslim men and states: "In the same area, resentment among

Hindu community is also reported for alleged police inaction" against the

two, "who are alleged to have been involved in mobilizing members of

Muslim community during Delhi riots and anti-CAA protests".

5. He further submits that Senior officers heading probe teams have also

been asked to "suitably" guide the Investigating Officers while the

investigation is still pending. The order further states that "Due care and

precaution be taken while arresting any person. All evidences including

direct and technical evidences be properly analysed and that all the arrests

are backed by sufficient evidence be ensured. No arbitrary arrest should be

made in any case and all evidences must be discussed with Special PPs

(public prosecutors) assigned for each case," it states, adding: "Supervisory

officers ACPs/DCPs --SIT & Additional CP/Crime (Headquarters) may

guide the IOs (investigating officers) suitably."

6. Mr.Pracha further submits that the letter dated 08.07.2020 and

subsequent tweet on 15.07.2020 give direct message to the subordinate

officer that due care be taken in case of arresting Hindu people. It

simultaneously conveys that the same precaution may not be taken while

arresting the Muslim people.

7. On the last date of hearing, i.e. 31.07.2020, this Court specifically

asked respondent no.4/Special CP, who was present through video

conferencing, that what was the occasion to issue such an order. He replied

that on receipt of input it, is a usual practice that is followed to guide the

subordinate officers to deal with the cases in a proper manner.

8. Letter dated 08.07.2020 issued by the respondent no.4 is reproduced

hereunder:

"ORDER

Subject: Input regarding North-East Delhi Riots.

As per an intelligence input, arrests of some Hindu

youth from Chand Bagh and Khajuri Khas areas of

North-East Delhi recently in connection with Delhi riots

has led to a degree of resentment among the Hindu

community there. Community representatives are

alleging that these arrests are made without any evidence

and are even insinuating that such arrests are being

made for some personal reasons. In the same area,

resentment among Hindu community is also reported for

alleged police inaction against Mohd.Rashid s/o Mohd.

Shafique and Mohd.Azam Khan of Gali No.1, E Block, 25

Foota Road of Chand Bagh; who are alleged to have

been involved in mobilizing members of Muslim

community during Delhi riots and anti-CAA protests.

Due care and precaution be taken while arresting

any person. All evidences, including direct and technical

evidences, be properly analysed and that the arrests are

backed by sufficient evidence be ensured. No arbitrary

arrest should be made in any case and all evidences must

be discussed with Special PPs assigned for each case.

Supervisory officers including the ACsP/DCsP-SIT

& Addl. CP/Crime (HQ) may guide the IOs suitably."

9. As stated by respondent no.4, first para of the aforesaid order is input

received from intelligence in writing and the second para is the instructions

to the subordinate officers stating that due care and precaution be taken

while arresting any person. All evidences, including direct and technical

evidences, be properly analysed and that the arrests are backed by sufficient

evidence be ensured. No arbitrary arrest should be made in any case and all

evidences must be discussed with Special PPs assigned for each case.

10. Mr.Pracha has raised an objection that nowhere in Cr.P.C. or any

other provision of law it is stated that the evidences must be discussed with

Special PPs assigned to each case.

11. Mr.Chetan Sharma, learned Additional Solicitor General and Mr.Amit

Mahajan, SPP appearing on behalf of the respondents also have not disputed

the fact that neither in Cr.P.C. nor under any other provision of law there is

any mention of requirement for such a discussion. However, in case legal

opinion is required, the police may seek legal opinion from the Prosecution

Department on the particular issue. The same is not applicable when the

evidence is on record and it is totally the prerogative of the IO of the case to

decide which evidence should be part of the chargesheet.

12. Moreover, it is not in dispute that the incident of riots in Delhi took

place from 24.02.2020 to 26.02.2020 and all the cases in relation to the said

riots were registered before issuance of the letter dated 08.07.2020. In some

of these cases, chargesheet has already been filed. In FIR No.52/2020,

wherein father of petitioner no.1 was killed, as stated by Mr. Mahajan, that

16 accused (Hindu) were arrested and in FIR No.70/2020, wherein mother

of petitioner no.2 was killed, six accused (Hindu) were arrested.

13. He further submits that till date 535 Hindus and 513 Muslims have

been chargesheeted in all the cases. Thus, no prejudice has been caused

pursuant to letter dated 08.07.2020 and through clarification and correction

response dated 15.07.2020.

14. Before parting with the present petition, this Court hereby makes it

clear that the IOs of the cases shall deal with the cases in accordance with

law and shall not take into consideration about instructions issued vide order

dated 08.07.2020, whereby it is stated that the evidences must be discussed

with Special PPs assigned to each case.

15. Since in my considered opinion, the accused persons have already

been chargesheeted before issuance of letter dated 08.07.2020, no prejudice

has been caused.

16. It is not out of place to mention here that while issuing any

instructions especially in such type of situation, the respondents shall take

due care, however, in any eventuality, instructions may be issued within the

powers mentioned under section 36 Cr.P.C.

17. The passing of this order will not put an embargo on the petitioners to

avail any remedy available under the law.

18. It is further make it clear that subordinate courts shall not get

influenced by the observations made by this Court in disposing of the

present petition.

19. This Court noticed while going through the present petition that the

electronic/print media has published some news which is against the letter

and spirit of the order dated 08.07.2020 issued by respondent no.4.

20. Therefore, it is suggested that media being the fourth pillar of

democracy, news should be clear after verifying the facts so that no

prejudice is caused to anyone or hatred is spread among communities in this

country.

21. It is further suggested that the investigating authorities must not create

any bias on the basis of any instruction issued by the senior officers which is

not recognized under any law.

22. The observations made by this Court will not cause any prejudice to

respondent no.4 or any other police officers and shall not come in the way

of their service in future in any manner.

23. In view of above, the petition is disposed of.

24. Pending application stands disposed of.

25. The order be uploaded on the website forthwith. Copy of the order be

also forwarded to the learned counsel through email.

(SURESH KUMAR KAIT) JUDGE AUGUST 07, 2020/ab