"Half-baked charge sheets". "Lackadaisical attitude". "Callous and indolent investigation". "Criminal wastage of time and money of the taxpayer". "Casual, callous and farcical manner".
These are the words used by various Delhi courts in recent weeks to describe the Delhi Police's investigation of cases arising out of the Delhi Riots of February 2020. After 53 people were killed and property worth crores destroyed, over 750 FIRs were registered.
These have not just been off-the-cuff oral observations, but have been grounds for the courts to grant bail to accused persons and even discharge some of them from cases – meaning the courts found that the case against them was too weak to go to trial.
All this, despite the Delhi Police having had over 18 months to investigate and prepare these cases.
Not only have we carefully analysed the orders to see what the police have got wrong, but we have also reached out to expert and practising criminal lawyers who have offered explanations of why the police have been failing to do their jobs.
Most importantly, they also tell us that beyond the eye grabbing statements that the courts are making, there is a dearth of meaningful action. This means we are far from a solution to this ongoing problem.
What Explains These Glaring Flaws in Delhi Police's Investigation?
It would be churlish to assume that every investigation by a police force in the country is going to lead to convictions. In some cases, there just may not be sufficient evidence to present to the court. In others, the investigation may not be able to produce the best evidence because of circumstances outside the police's control.
However, as can be seen in the sections explained below, there are multiple issues with the Delhi Riots investigations which go beyond mere errors or unavoidable circumstances, from call records contradicting police claims, to use of 'planted witnesses'.
This is where the observations of the courts have been so telling, because the judges have expressly recognised these flaws – even in cases where they have accepted charge sheets.
In State vs Ashraf Ali, for example, a case involving injuries to police personnel, the court agreed to frame charges against the accused but noted that vital evidence had not been collected by the police including samples of the acid allegedly used in the attacks, as well as statements on the nature of the injuries.
"It is further painful to note that in a large number of cases of riots, the standard of investigation is very poor," said Additional Sessions Judge Vinod Yadav, one of the judges who is hearing many of these cases at the Karkardooma court.
As a Delhi-based senior advocate specialising in criminal law says, these kind of failures show the Delhi Police have "not followed the basic tenets of law and procedure", let alone best practices. They add,
"If you don't apply your mind, then obviously nothing will happen. Where is the forensic evidence, where is the phone evidence. If the police have not approached this scientifically, then in a matter like this, there are going to be missing links in evidence, and they are going to face condemnation from the courts."
They also note that these kind of cases aren't just collapsing at trial, they're collapsing at preliminary stages of cases. "Which really goes to show that it's not even passing muster for an early stage, not even a bail stage. If they're not passing muster now, what is going to happen to these trials?"
Another senior advocate based in Delhi who specialises in criminal law is also astonished at how these cases have been investigated, and suggests that the reason the investigation has been so lackadaisical is because it hasn't exactly been an independent one.
While the court orders slamming the Delhi Police's investigation deal with the basic IPC (not UAPA) cases from the Delhi Riots, the shadow of FIR 59 of the Delhi Police Special Cell, which deals with the claims of the overarching conspiracy behind the riots, looms large over the investigations as a whole.
And the way in which that conspiracy investigation "mirrors political comments" by BJP leaders including Home Minister Amit Shah, includes "openly communal assertions", and seeks to further a particular narrative, cannot be divorced from the other cases, the second senior advocate explains.
Their opinion is also shared by senior advocate Mihir Desai, a Bombay-based human rights lawyer with extensive experience litigating UAPA cases (including the Bhima Koregaon case).
"The Delhi Police might be a professional force but they are acting under the instructions of political masters. They are keen to show arrests, they are not bothered if anyone is convicted or not. The idea is to stop people from speaking, scare populations, by mass arrests. It doesn't matter if tomorrow they are discharged or acquitted. Once you go with that purpose, you are bound to have these kind of problems."Mihir Desai
Readers who watched Netflix's Trial of the Chicago Seven may remember how two of the defendants in that case, protesters who were accused of inciting riots, insisted from the outset that theirs was a political trial, not really a criminal trial.
Desai takes a similar view of the Delhi Riots cases, even those which aren't tied to the UAPA conspiracy charges, because of the flaws in the police's overall approach here.
"This is not about legalities - these are political cases," he says, adding that "You are skirting the issue if you are talking about other matters."
Desai and both the other senior advocates The Quint spoke to, agreed that the Delhi Police has the capability to be an extremely professional force, and that they have all the required training and skills to navigate even difficult cases like the Delhi Riots.
While the first senior advocate does not subscribe to the view that larger communal issues have clouded the Delhi Police's investigation of the non-UAPA cases, they nonetheless believe that these investigations have demonstrated a lack of professionalism, and the police need to return to the standards they had.
Desai notes that this is hardly a problem that is unique to the Delhi Police under the present central government (the Delhi Police fall under the control of the Union Home Ministry).
He points out that the Delhi Police have followed political orders even during the time of the UPA government, and that state police forces in non-BJP states like West Bengal and Maharashtra are also controlled by their respective state home ministries.
The second senior advocate also observed that the Delhi Police's (and indeed other police forces') reliance on draconian statutes like the UAPA was also a factor in why the investigations in general have been so shoddy.
As the chief political targets of the investigation have been charged under the UAPA, it is next to impossible for them to get bail for years – so even in the main conspiracy case, there is little effort being expended to conduct an exhaustive investigation as they have already been able to get the main accused behind bars.
If there is little scope for a serious investigation in that case, it is not surprising to see a failure to adhere to the highest standards in the other cases, which have less political relevance, they argue.
How These Flaws in the Investigations Cripple Prosecution Cases
It does not matter where one stands on the broader conspiracy claims about the Delhi Riots, there can be little doubt that horrific violence did take place against both the Hindu and Muslim communities in north-east Delhi. Hundreds of homes and shops set on fire, huge numbers of people displaced.
A policeman, constable Ratan Lal was killed after a mob attacked him and other policemen near an anti-CAA protest site near Chand Bagh. The policemen were beaten with sticks and stones, and Ratan Lal suffered 21 injuries, including a bullet wound, which caused his death.
Similarly, a WhatsApp group called 'Kattar Hindut Ekta' (sic) was created during the riots “to take revenge on Muslims.". The members bragged about "killing Muslims" and "dumping their bodies in the sewer".
It is absolutely essential that those who committed these crimes are identified and prosecuted and punished in accordance with the law.
But if the investigation into these events is flawed, if it doesn't employ the correct techniques and practices, if the evidence isn't sufficient, then these cases will fall apart, and the guilty will escape justice.
No Electronic Evidence to Prove Presence
Consider the case regarding the death of constable Ratan Lal. There are video recordings of what happened. There were numerous police officers present at the scene, and civilian witnesses as well.
You would think that especially in a case involving one of their own, the Delhi Police would make sure their case is water-tight, and they do not arrest people against whom they don't have sufficient evidence.
However, as the Delhi High Court has found when granting bail to five of the accused in this case on 3 September and another two of them on 14 September, the Delhi Police had no evidence to show that these seven Muslim accused were even at the scene of the crime when constable Ratan Lal was killed.
For one of them, the CDR and Cell ID details which the police themselves produced showed that they only arrived in the vicinity after the death of the constable. One of them, a woman who had been one of the organisers of the protests, could not be seen in any of the videos as being present at the time of the violence. Several of the others had been named as accused only because they had been organisers of the protests, with no electronic evidence placing them at the scene of the crime.
Thankfully, the police had actually managed to arrest at least two people who were clearly identifiable in the videos available of the incident, and these men were denied bail by the high court.
But there are serious questions to be asked about an investigation where the police are just throwing accusations against a group of protesters and crossing their fingers that some of the charges will stick.
In the longer term, this approach, will in many cases, lead to a complete collapse of the cases. Most dangerously, it could lead to a lackadaisical attitude even when it comes to those against whom there is evidence.
This is not just a theoretical situation.
Failure to Get Witnesses
On 3 September, former AAP councillor Tahir Hussain's brother Shah Alam was among three accused discharged by Additional Sessions Judge Vinod Yadav in a case relating to the looting and arson of a shop in Chand Bagh.
None of the three accused had been named in the FIR filed regarding the incident, there was no CCTV or other electronic evidence that placed them at the scene of the crime, there weren't even any independent witnesses, and the police's own narrative did not assign any specific role to the three men.
The only witness the police had was one of their own constables, whose statement was recorded after the three men had been arrested. The judge questioned how a major incident like the one in question had not been observed by anybody.
Despite submitting multiple supplementary chargesheets and taking up a great deal of the court's time, the police had failed to produce any evidence which could actually justify the allegations against the three men.
Naturally, Judge Yadav had some strong words for the police in this case.
"The sort of investigation conducted in the instant case and the lack of supervision thereof by superior officers clearly shows that the investigating agency has merely tried to pull wool over the Court's eyes and nothing else," he said. "The case appears to have been solved merely by filing this chargesheet without any real effort being made to trace out the eye witnesses, real accused persons, and technical evidence."
The judge also made a pithy observation about how this kind of poor investigation fails the victim and society at large:
"The casualty in the matter is the pain and agony suffered by complainant/victim, whose case has virtually remained unsolved; callous and indolent investigation; lack of supervision by the superior officers of the investigation and criminal wastage of the time and money of the tax payer."
The inability to find proper witnesses, an absolutely basic requirement in criminal cases, extends to multiple cases, and shows how these kinds of flaws can become endemic, and affect multiple cases, if allowed to happen.
In multiple bail orders in April and January 2021, the sessions court and Delhi High Court granted bail to several accused in riots cases where the only evidence against them were statements from police witnesses.
In one of the cases before the sessions court, the judge observed that the police witness who claimed to have observed the accused commit acts of rioting and arson neither took any steps to stop the criminal activity, but also failed to register a case at the police station later.
In the Delhi High Court, the judges questioned how the police witnesses were able to observe incidents and identify the accused when they were hundreds of metres away.
What makes this particularly galling is that on multiple occasions in 2020, the courts had already raised red flags about the fact that the only witnesses in several cases were police witnesses.
As far back as June 2020, in a case where a Muslim man was accused of burning down a Muslim-owned shop, the Delhi High Court had granted bail to the accused after noting that the complainant had nowhere identified the accused despite telling the police he could identify who had committed the crime.
The only evidence against the accused was a single statement by a police constable who claimed to be at the scene of the crime, whose testimony was found not to be credible.
In October 2020, the high court had even gone so far as to say that two police witnesses in a case of rioting and arson against Tahir Hussain's associate Irshad Ahmed, "seem to be planted".
Having credible witnesses in these cases was nothing short of vital, as there was no other electronic evidence like CCTV footage or CDR records to tie the accused to the crime.
That the police have been consistently failing to do their jobs points once again to how a careless approach to cases can become a culture, affecting investigations across the board.
Poorly Drafted Charge Sheets
Once an investigation agency is willing to build its cases on such shoddy foundations, this affects more than just bail hearings, as the case against Tahir Hussain's brother showed. But that was just one example.
The courts have questioned multiple charge sheets, some at the stage of bail, some at the stage of framing of charges, which paint pictures of negligence and, in some cases, of vindictiveness.
In terms of negligence, the courts have discharged two accused, Javed and Gulfam with respect to charges of arson in Dayalpur and Munga Shiv Mandir respectively.
In Javed's case, it was found that there hadn't even been a claim of arson by the complainant, whose shop had been looted. This serious charge had been added to the offences of rioting by the police without any basis whatsoever.
In Gulfam's case, the arson charge was added in the Mandir Marg case based on witness statements in a separate case. The baffled judges wrote in their order dated 2 September, "It is beyond comprehension that under what provision(s) the investigating agency has imported the statements of said witnesses recorded in case FIR No.86/2020, PS Dayalpur in the case in hand."
As for vindictiveness, those are words used by Additional Sessions Judge Vinod Yadav himself when referring to the naming of activist Khalid Saifi in the Khajuri Khas rioting case.
The judge granted Saifi bail in that case (he remains behind bars in the UAPA conspiracy case in FIR 59) as there was no material to tie him to the actual incident of rioting and the only evidence used to say he was part of a conspiracy to plan that particular riot was one contradictory witness statement.
"In my humble opinion, charge-sheeting the applicant in this case on the basis of such insignificant material is total non-application of mind by the police which goes to the extent of vindictiveness."
While in these cases, the case as a whole has not been thrown out by the courts, the mistakes made which have been noted in these orders could well lead to the acquittal of these accused if the cases actually go to trial, as the failures used here can be used to cast doubt on the police officers and the witnesses during cross-examination.
We have already seen one example of a poorly prepared charge sheet leading to an acquittal. In July 2021, Additional Sessions Judge Amitabh Rawat acquitted one Suresh, accused of breaking into and looting a Muslim-owned shop on Main Babarpur Road, saying:
"The prosecution has miserably failed to prove its case, forget about beyond reasonable doubts."
The case had all the hallmarks of the shoddy investigations discussed above: there was no electronic evidence to identify the accused, the only witness who testified to seeing Suresh at the scene was a police constable, who mysteriously took no action or filed any complaint at the time, and other statements were contradictory.
It is also important to note at the end of the day that the consequences of these 'poor' investigations are terrible impacts on human lives. The accused in these cases have spent months languishing behind bars despite how flimsy the cases against them are. They have lost jobs, been unable to meet family – all of this during an unprecedented pandemic too.
Should the Courts Refrain From Such Strong Comments? Or Should They Do More?
The comments by the judges, from sessions courts to the Delhi High Court, have been remarkably scathing, and the number of cases in which these comments have been made is also quite unusual.
However, not everyone thinks this is a good thing. The first Delhi-based senior advocate The Quint spoke to believes that these kind of comments are examples of the courts playing to the galleries, and can detract from the serious legal issues at hand:
"According to me, this is not appropriate. Orders should stick to facts, evidence, whether offences are made out or not. When statements are capable of being sensationalised, it will lead to a different impact."
Mihir Desai has a different problem with the comments: that these kind of "homilies" are easily done, but they are meaningless without some action taken. The courts are not doing enough, he contends, saying:
"There are so many cases, hundreds of cases, not just here, where the courts keep on giving lectures about how bad the investigation is. But how many times have they directed suspension of the police officer who does it badly? How will it matter to the inspector if the court gives this remark or that remark if he is assured his promotion?"
"The idea of the court making these kind of remarks is that the executive will then take some action," he explains. "But if the executive is hand in glove with the police, then who is going to take action?"
In addition to directions for action against the police officers who are involved in cases where the investigation is hauled up by the courts, Desai suggests that one way to deal with the problem is for the high courts or even the Supreme Court to lay down directions for compensation of the accused in situations like this.
"Start directing police inspectors to pay compensation from their own pockets to people who have been wrongly arrested and wrongly charged and everything will get right. Do it in five cases, and law and order will improve."Mihir Desai
On this front, there has at least been some indication that the courts are finally willing to step up. In July 2021, the Karkardooma court fined Bhajanpura PS police officers Rs 25,000 after they had challenged the court's order directing them to register an FIR based on the complaint of a Muslim man, Nasir, who had lost an eye when attacked.
The court noted that the police appeared to be creating a defence for the men accused in Nasir's complaint – all members of the RSS, The Quint had previously found – and that their investigations in other FIRs had also been "casual, callous and farcical."