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Delhi High Court today started hearing a batch of petitions demanding registration of first information reports (FIRs) against several politicians for their role in instigating the Delhi Riots that took place across the city in the year 2020. 

Examining the maintainability of this batch of Public Interest Litigations which pertain to criminal cases, the bench of Justice Mridul and Justice Bhambhani noted that people against whom petitioners had sought investigation and inquiry were not even made parties.

To this, the Court asked Sr. Adv. Colin Gonsalves, counsel for one of the petitioners, "So Mr. Gonsalves, you're asking us to take action against persons who have not been made parties here?...Can we proceed against these persons against whom you've made serious allegations without even hearing them?"

When Gonsalves replied in affirmative, the Court again enquired, "If you make an allegation against an individual are they not entitled to a fair hearing? I'm asking in law. Have you moved in S.156(3) CrPC?"

However, Central Government Standing Counsel of Delhi High Court (CGSC) Amit Mahajan intervened and pointed out that S.156(3) application was filed in one of the matters by Brinda Karat. "Trial Court had passed an order and it is now pending before a Single Judge," he informed. 

The Court further highlighted that the in such cases where FIR has not been registered or a party seeks investigation or re-investigation and direction for registration of FIR, as per the principles in the case of Sakiri Vasu, the Court's "understanding is that first is S.154(3) CrPC an FIR, then S.156(3) CrPC before a Magistrate and then A.226 in High Court.

However, in the present case, the petitioner has approached Court without the S.156(3) CrPC application.

However, Gonsalves argued in favor of the public cause underlying in these petitions. He said, "Yes, so, there are two aspects. One is that these persons are victims, affected persons of riots, second is that where the investigating agency has abdicated its responsibility, we can proceed."

However, the Court still insisted upon impleadement of the necessary parties. It said, "The question is are they necessary and proper parties? And can we direct an action with criminal consequences against those who are not before us? Who will defend them?"

"If you were to say that riots took place and cognizable offences took place, just ask the police to investigate the offences, it would be different. But where you have named people, and asking for their arrest, can you do that without making them parties?" it added.

Upon this query, Adv. Nupur Agarwal for another petitioner averred, "My Lords I just want to highlight that we are not seeking registration of FIR in our plea but merely the following of guidelines."

However, the Court pointed out that it has already been made clear that the hearing will continue only in relation with the prayers which are still relevant. It said, "We are repeating that we may be given prayers separately, as to which ones are still alive, which not and which are maintainable in PIL jurisdiction under A.226."

Thereafter, Gonsalves started making averments regarding the allegations. He said, "We do not have faith in Delhi Police in investigating the matters properly. We can show you so many orders of the Supreme Court that where it seems that the State police cannot investigate neutrally, an independent agency may be brought in. Further, where police itself is facing allegations a new agency may be brought in."

He further alleged that Delhi Police was part of the Delhi Riots, there are videos showing that the police called upon people to fire on the minority community.

The bench responded, "If this petition was merely asking for transfer of investigation, we would've looked at it differently. But it is not. You gentlemen, are pulling in many different directions. This is the reason why PILs are discouraged in criminal matters."

Thereafter, the Court heard one A. Gautam,  on whether the petitioners have submitted the said videos to Delhi Police and the Police have not taken action. "You say you've sent videos showing the commission of cognizable offence to Police?" it enquired.

Gautam replied stating that there are multiple agencies and organizations involved. Upon hearing his reply, the Court said, "What multiple agencies and organizations? No grandstanding please, just because you're appearing in person doesn't mean you can grandstand."

Hearing other petitioners, it concluded that, "The first thing we needed on record was the consolidation of prayers, to see where there is an overlap, what prayers still survive, what is the scope of jurisdiction of this Court to grant or consider the grant of those prayers....We have a list consolidated by Mr. Gonsalves. You've said that we should stand on it till they are added as parties."

Thereafter, the Court asked ASG Aman Lekhi, appearing on behalf of the Union Government his view on adding of proper and necessary parties. To this, Lekhi replied in positive. 

Importantly, Adv. Ajay Gautam, on of the petitioners, invited the Court's attention to one of the allegations. He said, "One 7 year old girl was found saying, "Hum Modi aur Shah ko maar ke rahenge."

He further alleged that, "The riots were funded by foreign agencies, minors and women were used as front shield. Please see the reply by Delhi Police. This is not me, it's admitted by Delhi Police."

However, the Court asked him to refrain from sensationalizing the matter and inquired as to whether he has filed any complaint with regard to these hate speeches.

It said, "These are allegations which aren't for the Court to investigate. You're not invoking the IPC, which Penal Code should we invoke please tell us?"

To this, Gautam replied, "I've not made representations because Delhi Police has no jurisdiction to entertain these complaints. Only NIA and CBI do."

Gautam also told that the allegations, which is he referring to, are part of chargesheet. Noting this, the Court said, "Then what is the urgency? Chargesheet has been filed pursuant to an investigation by police......This is just a lot of rhetoric. On a lighter note, continuing to hear you, we may forget tenets of criminal law."

The Court further clarified, "We are looking at hard cases here, specific ones. If you are looking at generalized prayers, then you may make representations to any other authorities."

Accordingly, the Court suggested that Gautam's plea should be separated from the batch. It noted, "Mr. Gautam is saying there was an international conspiracy.....the issues you are raising have nothing to do with the other petitions here, so we can separate it and hear it separately."

However, Gautam requested against it. Consequently, court allowed Gautam to delete one of his prayers and let him continue with the batch.

Lastly, adjourning the case for further hearing, the Court granted time to ASG Lekhi to place the relevant material on record and Sr. Adv. Colin Gonsalves to add necessary and proper parties.

Cause Title: Shaikh Mujtaba Farooq & Ors vs Union of India & Ors.