Delhi Pogrom: Court sets new precedents raising questions on criminal justice system

The case also reveals another heinous attempt and ruthlessness of Delhi Police where they arrayed innocent Muslims as accused in the cases registered on behalf of violence against Muslims. Photo: Shaheen Abdulla/Maktoob

Adv. Ameen Hassan

On 11 April 2020, the Delhi High Court refused to grant bail to a Muslim youth who was arrested for alleged involvement in violence during religious pogroms conducted by Hindu nationalists left 36 Muslims dead in Delhi in 2020 February.

This particular case is a clear narrative of how the government organs including police play their part in the Muslim genocide project of Rashtriya Swayamsevak Sangh (RSS) by framing victims of the pogrom. Understanding the factual details of this case throws light upon the brutal acts executed by the Delhi Police after the pogrom.

Shadab Alam, son of Dilshad Ali and Naved, son of Sageer Ahammed were arrayed as accused along with many other persons in FIR No. 57/2020 dated February 24, 2020, lodged by Dayalpur Police.

The alleged offenses are 147,148,149,427 of Indian Penal Code (IPC) and Section 3 of the Prevention of Damage to Public Property Act (PDPP Act). According to the police, the accused is said to have been arrested on 28 February within the Dayalpur police station limit. Shadab was forcefully taken by the police from his place of work, Samrat Store, a pharmacy in Brijpuri. 27-year-old Shadab resides with his family in Old Musthafabad for more than five years and was employed in a pharmacy owned by Anurag Gai. Naved was also working in the same firm.

There are several shreds of evidence that support the fact that they had not been a part of protests and were not involved in any illegal activity, which includes the statements of the applicant’s employer, co-workers and residents on the first floor of the building. The defense has filed an application U/S 91 of Code of Criminal Procedure (CrPC) before the Magistrate to summon the CCTV footage from the Dayalpur police station area and has submitted a copy of CCTV footage from his workplace. The defense also made a submission before the magistrate that Call Detail Records (CDR)  of the accused may be called for.

On 24 February, Shadab Alam had attended a prayer ceremony at Eidgah Masjid in Karol Bagh after which he returned to his workplace in the afternoon. When the protest took place in front of the medical store, Anurag Gai shut the store and moved to its terrace along with his employees including the accused. They remained on the terrace until the situation got better. Shadab spoke to his family around 3 PM to inform that he is on the second floor of the building along with others. After some time several uniformed and ununiformed policemen approached their building, tried to climb the door outside the terrace area and shouted at them to come outside. Upon which Gai opened the door to terrace and let the police inside. The policemen then started to question them and Gai explained to the police that persons along with him were all his employees who had been with him throughout the day and where not involved in any incidents that took place in the area.

The police thereafter took Shadab and Naved amongst them into custody. Gai explained to the police that they were not a part of the incident in any manner. The police told him that they will be released shortly and were taken to Dayalpur police station. Shadab had his mobile phone and keys to the medical store with him while he was detained. The keys were returned to Gai by the police but Shadab’s phone is still in the police custody. Shadab’s family were not allowed to see him though they made several visits to the police station and they could see him only when he was produced before the court on 28 February. All the accused (nine in number) including Shadab and  Naved were unlawfully detained from 24 February and their medical examinations were not conducted properly.  The accused were produced before the court after four days from the day of detainment which is a violation of the mandate of Section 57 r/w Section 157 of CrPC and Article  22(2) of the Constitution.

On 3 March, Shadab’s and Naved’s fathers and Anurag Gai, owner of the medical store were visited by some men who identified themselves as the officers from Deputy Commissioner of Police (DCP), North East Delhi who did not even disclose their names. They said officers further informed them that, they had come to take the statements regard to the article dated 10 March published in ‘The Hindu’ about the arrest of the accused.

The report filed by the investigating officer dated 16 March before the court claims a surprising narration contradictory to the overwhelming evidence regarding the incident, which says that certain persons including the accused had gathered near the Sherpur Chowk on 28 February (after 4 days of detainment) at 3 AM with an intention to cause a riot and hence the police arrested the accused.

In fact, in a similar manner, all the accused in the present case and in other cases (Crime No. 57/220, 58/220, 67/220, 68/220, 69/220, 70/220) of Dayalpur police station were falsely accused as per the fabricated narration of police. Shadab, Naved and many others were detained on 24 February and it even includes individuals who approached the police station seeking help amidst the violence led by Hindu militants. This case also reveals another heinous attempt and ruthlessness of Delhi Police where they arrayed innocent Muslims as accused in the cases registered on behalf of violence against Muslims.

A similar practice is being adopted by the Delhi Police in almost all other cases related to the Delhi pogrom and they still continue their hunt for Muslims. The victimized Muslims are being accused, arrested and kept in judicial custody even amidst the present COVID scenario. The youth including students who were a part of the anti-Citizenship Amendment Act protests are consciously being targeted.

The arrests of Meeran Haider and Safoora Zargar, students leaders of Jamia Millia Islamiya, exploiting the lockdown is the recent example of the same. It is high time to demand that Delhi Police must be pulled down from the investigation immediately and a fresh transparent probe is to be carried out by an independent agency.

The procedures observed by courts after the Delhi pogrom, including the instant bail order, raises many serious questions and concerns about the criminal justice system that prevails in the country. Undoubtedly the court admits in the bail order that the only non-bailable offense under Section 3 of the PDPP Act will not attract in the instant case. The court is convinced that the police have failed to produce evidence to establish even a prima facie case against the accused, as evident from the bail order.

It is of utmost shame that the court has denied bail upon hypothetical observations even after 43 days of judicial custody.  Someone has to remind the court that the right to liberty is one of the fundamental rights guaranteed by the modern constitution of all civilized countries. The courts while considering the bail applications must keep in mind the golden principle laid down by the Supreme Court; Bail is rule and Jail is the exception.

Ameen Hassan is a lawyer from Kerala

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