Opinion| Counter to Misplaced Attack on ASJ Baweja by Sensationalist Journalist

His article is primarily focused on the recent order passed by ASJ Baweja granting relief to BJP leader Kapil Mishra and others in connection with an incident surrounding the 2020 Delhi riots. Das has further juxtaposed the said order with the delayed proceedings in Delhi riots cases, and the orders denying relief to AAP leaders by ASJ Baweja in Delhi Liquor Scam Case, to suggest the non-linear approach of the judiciary. Lastly, the recent appointment of ASJ Baweja as Registrar-Vigilance of the Delhi High Court, has also been viewed with a sense of suspicion.

The order in question

On April 9, ASJ Baweja in exercise of her revisional jurisdiction, passed an order staying the operation of the impugned order passed by ACJM Vaibhav Chaurasiya against Kapil Mishra and others. ACJM Chaurasia had passed an order directing further investigation against Kapil Mishra and others for an alleged incident on 23.02.2020 in the backdrop of Anti-CAA protests. Interestingly, the order of further investigation came to be passed by the concerned ACJM while disposing of an application under section 156(3) CrPC seeking registration of an FIR. At this point, it is imperative to revisit the fundamental concepts of criminal procedure in brief.

An investigation into the allegations of a cognizable offence is set into motion by lodging of an FIR. The investigation so commenced culminates into a Police Report disclosing a prima facie positive or negative opinion of Police regarding the involvement of accused persons in the commission of the offence. This report is submitted before the Jurisdictional Magistrate/Special Judge, who is empowered to direct further investigation into the role of any named or unnamed accused on the basis of the material collected during investigation. Therefore, the power to direct further investigation is available only to the concerned presiding officer before whom the police report has been submitted pursuant to an investigation by police.

A close perusal of the operative portion of the order passed by ACJM and particularly, para 36(s) reveals that while ordering the further investigation, the Court acknowledged the prior interrogation of Kapil Mishra that was made pursuant to a notice under section 43F UAPA and it appears that considering the contents of the interrogation in light of attending circumstances, the Court proceeded on to direct the further investigation. It is noteworthy that the said notice for interrogation was given during investigation under a case PS Crime Branch 59/2020 which is at present pending before the Special Court, Karkardooma.

In view of the settled position of law, the order of further investigation passed by ACJM appears to be self-contradictory for two reasons—firstly, the very direction of further investigation itself suggests the acknowledgment by the Court of some investigation having been conducted previously, and secondly, the specific reference to material collected in the course of investigation suggests that the Court was very much aware of the pending proceedings before another court i.e. Special Court dealing with FIR 59/2020. For all practical purposes, it appears that it was the subject matter of the Special Court to take a call on the further investigation, if any. It is on these grounds that the criminal revision was preferred against the impugned order.

An order that disposed of an application seeking registration of FIR by directing further investigation after having an explicit reference to material collected in the proceeding pending before another court, was sufficient in itself for the purpose of warranting interference by the superior court. Moreover, what seems to have actually necessitated the stay of operation of the impugned order was the fact that the ACJM had also fixed the next date on April 16, for the compliance of the impugned order. Therefore, ASJ Baweja appears to have reached the satisfaction of staying the operation of the order, considering the totality of the circumstances.

Delayed trials: Umar Khalid and others

In contrast to the quick relief granted to Kapil Mishra, Das highlights the long incarceration of accused persons in Delhi riots cases such as Umar Khalid and Gulfisha Fatima. Although there is no comparison in proceedings of a Criminal Revision petition and the full-fledged trials involving multiple accused persons, the right to speedy trial of accused persons implicit under Article 21 cannot be undermined. The law, in fact, does not distinguish between the accused persons as regards their cherished right to speedy trial is concerned, be it an accused allegedly involved in a cycle theft or an accused like Umar Khalid who is allegedly involved in the incident of more than 50 deaths. The long incarceration of accused persons pending their trial is a legitimate concern.

What makes this situation more grieving is the fact that accused persons like Umar and Fatima are not an aberration to the general rule. There are innumerable accused persons across the country who suffer a very long period of custody without bail while their trials get delayed. It may be expected that such a situation must not be allowed to persist at least in high-profile cases but the same doesn’t appear to happen either. For instance, the Malegaon blast accused Sadhvi Pragya remained in custody for over seven years before the matter could even reach the stage of charge, and the trial is yet to complete even after 15 years as of now. Quite evidently, these delayed trials and long incarcerations do not seem to be a recent phenomena and our judicial system requires an overhaul on these aspects for a very long time.

Denial of relief in Delhi Liquor Scam

It has been stated that ASJ Baweja who has handled several politically sensitive matters, has a distinct judicial style and in support of this claim, a reference has been made to an observation of the Supreme Court while granting bail to Manish Sisodia in Delhi Liquor Scam case. In the said judgment, the Supreme Court in para 44 has categorically stated that ASJ Baweja has committed no error in considering the merits of the matter. However, what was actually pointed out by the Court was that the trial court as well as High Court applied the triple test under Section 45 PMLA to reject the bail application, in ignorance of observation of the Supreme Court in previous judgments regarding right to bail in cases of delay to be read under sections 439 CrPC and 45 PMLA.

It must be realised that the purpose of hierarchy of courts in our judicial system is to ensure that any error occasioned in any judicial order can be set right by the superior courts. The very fact that an accused has ordinarily four levels of remedy available to him before the Magistrate Courts, Sessions Courts, High Courts and the Supreme Court, suggests that the judges who preside over these courts are not considered infallible and even the judges of the apex court, on many occasions, take contrary views with respect to the same subject matter. Every judicial order passed by the subordinate court cannot be expected to be affirmed by the superior courts. For this reason, any observation of the superior court must not become the basis for conjectures to impute motives to the judges or to question their judicial approach in general.

Appointment as Registrar-Vigilance

On April 21, the Chief Justice of Delhi High Court appointed ASJ Baweja as Registrar (Vigilance) of the Delhi High Court with immediate effect. Not only this appointment is being suspected as a reward for her so-called distinct judicial style but several apprehensions have been raised regarding her probable conduct as Registrar (Vigilance) giving her an upper hand over other judicial officers posted in Delhi. As discussed so far, nothing substantial has been pointed out against ASJ Baweja which could indicate the possibility of her using this office to the prejudice of judicial independence of the other judicial officers.

Her appointment has been duly made on the directions of the Chief Justice himself and unless, there is something more than mere conjectures to cast doubt on her professional conduct, any apprehension so raised against her seems to be an outcome of a conspiracy theory. Casting doubt over her appointment and projecting the same as quid pro quo is equivalent to questioning the office of the Chief Justice. The presumption lies in the favour of her professional integrity and the same is not rebutted by merely quoting the outcomes of politically sensitive matters before her.

Conclusion

The institution of judiciary is not above criticism. As a matter of fact, the institution has witnessed enough instances where the majority opinions of the bench have been openly criticised and dissenting opinions have been wholeheartedly approved. The critical analysis of judicial orders contributes to the evolution of judicial thought process and decision making. In the same vein, a judicial response is not meant to be assessed on the basis of mere grant or denial of relief by the judge but must be holistically assessed on the basis of the merits of the matter. Those who undertake these assessments must do so with a sense of responsibility and considering the fact that the office of a judge does not allow them to offer rebuttals in public.