On 10 November, the Delhi High Court stayed the trial of ‘FIR 59’, under which the Delhi Police are investigating what they claim is the overarching conspiracy behind the Delhi riots of February 2020.
The police have alleged that anti-CAA protesters, from Umar Khalid to Sharjeel Imam to Safoora Zargar, conspired with others like former AAP councillor Tahir Hussain to start the violence that rocked North East Delhi, and booked them (and charge sheeted some already) under the draconian Unlawful Activities (Prevention) Act.
The court order from 10 November states: “Till further order, trial is stayed.” But what exactly does this mean?
In this story we will look at the following two questions:
Why has the trial been stayed?
What will the impact of this stay be?
Why Has the Trial Been Stayed?
The trial was stayed by Justice Suresh Kumar Kait of the Delhi High Court on 10 November, after the Delhi Police challenged a lower court order directing it to provide physical copies of the over-17,000-page charge sheet.
The relevant portion of the lower court’s order read:
“Even though it may be desirable to have soft copies of the charge sheet, the law still mandates that a hard copy is to be made available to the accused. The provisions of IT Act can’t be made applicable or overwrite provisions of Section 207 of CrPC as it stands today.”
Section 207 of the CrPC (Code of Criminal Procedure) states that the accused have to be supplied a copy of the police report and other documents which include the final report (charge sheet), the FIR, statements to the police under section 161 of CrPC, statements recorded in front of a magistrate under Section 164 of CrPC and any other document relevant to the investigation.
The Delhi Police argued that since they had provided soft copies of the charge sheet in the pendrive to the accused, this was sufficient compliance with Section 207 of the CrPC. They argued that since the concerned section only says “copy”, a soft copy would also be well within the meaning of the word.
They also cited the Information Technology Act 2000 to justify this stand. The police claimed that under the Section 4 of the IT Act, any time some information has to be provided in writing under any law, then an electronic form of the document is to be deemed sufficient to satisfy the legal requirements.
They noted that this includes a non-obstante clause when it comes to what the other legislations say: this means, according to them, that applies even to older legislations which might specifically require paper copies to be provided, meaning even there a digital copy should suffice.
The high court has not accepted the argument yet, but issued notice to all the parties to respond with their own arguments. The matter has been listed for 15 December.
What is the Impact of the Trial Being Stayed?
While the high court has stayed the trial, they have clarified that the trial court can still continue to decide any applications filed by the accused, including bail applications.
Then what is it that will particularly be impacted by this stay? The Quint reached out to lawyers of the UAPA accused to understand this.
Explaining the concerns regarding the stay on trial in this case, an advocate representing a UAPA accused said on the condition of anonymity,
“One of the primary concerns we have with not getting access to the hard copy is the inability of the accused in jail to be able to read it. Even if we do take the risk of going to jail and handing them the pen drive considering the COVID-19 pandemic, the accused will get access to a computer in jail for approximately an hour everyday at best. This means they will take weeks and months to go through the 17,000 odd page charge sheet. This is problematic as it is crucial for the accused to be able to go through it, it is an important component for a lawyer to come up with legal strategy.”
He went on to add, “Until scrutiny under Section 207 of CrPC is not complete, we cannot move to arguments on charge and the trial cannot progress.”
“This may be a delaying tactic to buy the police more time to make a case in subsequent charge sheets. While the court has allowed for bail and other miscellaneous applications to continue, every time a bail application is submitted it allows the police to improve their case in the supplementary charge sheet. This, in turn, affects our ability to argue for bail,” he further said.
Advocate Harsh Bora, who is representing UAPA accused Khalid Saifi, reiterated the need to complete the process of scrutiny under Section 207 of CrPC. “It just slows the progress of the case,” he said.
Sowjhanya Shankaran, representing UAPA accused Asif Iqbal Tanha, said,
“Before the arguments on charge happen, there is a scrutiny process under Section 207 of The Code Of Criminal Procedure where counsels of UAPA accused go through the documents of the prosecution to ensure that all documents, evidence etc mentioned in the charge sheet has been provided to the accused. The documents could also have other deficiencies, be dim, illegible etc. Therefore, the lawyers have to move court for access to those documents through applications. That process has been halted.”
It should be noted that at this point no date had been set for the trial as yet. One charge sheet has been filed in the case, but further supplementary charge sheets were still required to be filed, with arrests taking place in a staggered manner over the last few months. Umar Khalid, for instance, was arrested in September while others were arrested months before.
Given the way the Bhima Koregaon case has been proceeding: with new arrests and supplementary charge sheets every six months or so, and no framing of charges even two years since the first charge sheet was filed, it is unclear whether the stay on the trial will itself lead to an additional delay.
However, this current dispute has thrown a spanner in the works for the accused, as they are not receiving hard copies of relevant documents from the police, which does impact their ability to defend themselves.