Delhi court sets aside order to investigate Minister Kapil Mishra's role in Delhi riots

In a big relief to Delhi Law Minister and Bharatiya Janata Party (BJP) leader Kapil Mishra, a sessions court in Delhi on Monday set aside the trial court order directing Delhi Police to investigate Mishra's alleged role in the North-east Delhi riots of 2020. .Special Judge (PC Act) Dig Vinay Singh of the Rouse Avenue Courts quashed Additional Chief Judicial Magistrate's (ACJM) Vaibhav Chaurasiya's order of April 1. Judge Singh ruled the Magistrate's order was "fundamentally flawed, illegal, and improper". "It is set aside regarding the direction for further investigation into the incident mentioned in paragraph 2 of the application, which is referred to as the "first incident" in the impugned order," the Court ordered. .The Magistrate court had passed the order on a plea filed by Yamuna Vihar resident Mohammad Ilyas. Ilyas sought the registration of a first information report (FIR) against Mishra on allegations that he took part in the riots. He claimed that he saw Mishra and others blocking a road in Northeast Delhi's Kardampuri and destroying vendors’ carts during the riots. He also said the then Delhi Police DCP was standing next to Mishra..In his order, Magistrate Chaurasia raised serious questions over the Delhi Police investigation into the alleged conspiracy behind the Delhi riots. He said that many questionable assumptions, guesswork and interpretations had gone into building the police’s theory that the riots were a pre-planned conspiracy by anti-Citizenship Amendment (CAA) protestors. It has been police's case that the anti-CAA protests were not organic but only a facade to perpetrate mass-scale violence in the city. “Once these flaws are outlined, therefore the theory goes off and so does the lens with which prosecution seeks to interpret the facts,” the Magistrate said. Judge Chaurasia further said that several of Delhi Police’s interpretations, including the argument that women were put in front of the anti-CAA protests so that the police would practise restraint and mass-scale violence could be executed, can be interpreted otherwise..Both Mishra and the Delhi Police challenged the order before the sessions court. On April 9, the sessions court stayed the order for further probe. Today, the sessions court set aside the order altogether.It held that the Magistrate Court could not have ordered further investigation into the case since the Delhi Police had already registered an FIR regarding a larger conspiracy behind the riots and the Karkardooma Court has taken cognisance of it."The Ld ACJM could not have ordered such a further investigation because FIR No. 59/2020 was already under trial following the submission of a final report. Under Section 193(9) of BNSS, such a further investigation could not have been ordered by the Ld ACJM after the matter had been taken cognizance of by the Ld Special Judge," the Court noted.It added that the Magistrate could have ordered registration of a separate FIR against Mishra."Even if Kapil Mishra’s role, concerning conspiracy, was investigated, and the incident, as alleged by the complainant, was not probed, a separate FIR could have been directed, and this would have been legally permissible. However, this required a specific finding that there was no connection between the incident alleged by the complainant and the investigation in FIR No. 59/2020, and that the complaint disclosed a cognizable offence that requires the collection of evidence by the police," Judge Singh said..Senior Advocate Mahesh Jethmalani appeared for Kapil Mishra. Special Public Prosecutor (SPP) Amit Prasad along with advocates Dhruv Pande and Aarush Bhatia represented Delhi Police. Complainant Mohd Ilyas was represented by advocate Mehmood Pracha. .[Read Order].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.