Delhi riots: Court orders FIR against cop for hate crime, says Kapil Mishra's role not probed

New Delhi: A local court has ordered the registration of an FIR against a Delhi Police officer for alleged hate crime during the February 2020 communal riots in the city's northeast.

The court also deprecated the conduct of the investigating officer (IO) for failing to inquire about the alleged role of former MLA Kapil Mishra in the rioting incident connected to the matter, saying he "tried to cover up the allegations" against the BJP leader.

Judicial Magistrate Udbhav Kumar Jain was hearing an application under Section 156 (3) of the erstwhile Code of Criminal Procedure (CrPC), seeking the court's directions to register an FIR against the-then Jyoti Nagar SHO and others.

Power under this section can be exercised by the magistrate to direct the police to conduct an investigation in respect of a cognisable offence.

The complainant, one Mohammed Wasim, claimed that he was among five people allegedly assaulted and forced to sing the national anthem during the communal riots on February 24.

A clip that had become widely circulated on social media purported to show five Muslim men being beaten up by policemen and forced to sing the national anthem and "Vande Mataram", the national song.

In an order dated January 18, the court said, "Clearly, the SHO police station Jyoti Nagar, Tomar (complete name with post not provided) and other unknown police officials engaged themselves in hate crimes against the complainant or victim and they cannot be protected under the garb of sanction as alleged offences committed by them cannot be said to have been committed while acting or purporting to act in the discharge of their official duty." It directed that an FIR be registered against the-then SHO under sections 295 A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 323 (voluntarily causing hurt), 342 (wrongful confinement) and 506 (criminal intimidation) of the Indian Penal Code (IPC).

"The current SHO is directed to depute a responsible officer not below the rank of inspector to conduct investigation in the present matter and role of other unknown police officials involved in the commission of alleged offences can be ascertained during investigation," the court added.

It noted that an action taken report had been filed by the IO in the matter that merely denied the complainant's allegations.

The court said the action taken report did not mention any substantive steps that had been taken for conducting a preliminary inquiry and remained silent regarding the CCTV camera footage of the alleged incident.

It said, "Thus, inquiry pertaining to alleged acts or offences against the complainant has not been conducted properly." The also court noted Wasim's claim about identifying Mishra as leading the riotous mob.

"The complainant saw that the personnel of Delhi Police were fully supporting the alleged accused Kapil Mishra. Policemen were also pelting stones on the Muslims, and firing bullets. Due to the above attack, the protesters, women, and children escaped from there to save their lives and thereafter, a majority of rioters led by Kapil Mishra also went towards Chand Bagh shouting slogans," the court noted.

Regarding the allegations against Mishra, the court said it appeared that the "IO was more concerned about the police officials and either he failed to make inquiry against the alleged accused No 3 (Mishra) or he tried to cover up the allegations against the said accused and the action taken report was completely silent qua him".

"The Constitution guarantees equal protection of law and equality before law and no citizen of India enjoys any special treatment from the rule of law. The alleged accused No 3 is in public eyes and is prone to more scrutiny; such persons in the society direct the course or mood of the public at large and thus, responsible behaviour within the ambit of the Constitution is expected from such persons," the court observed.

It, however, directed the complainant to approach the special court which was competent to try offences against former or sitting MLAs.

Last July, Delhi High Court transferred to the Central Bureau of Investigation (CBI) a case related to the death of a 23-year-old man who was seen in the video being purportedly assaulted and forced to sing the national anthem during the riots.