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The Delhi high court on Tuesday transferred to the Central Bureau of Investigation (CBI) the case pertaining to the death of a 23-year-old man who was seen in a viral video being purportedly assaulted and forced to sing the national anthem during the communal riots here in 2020.
In a video clip that had gone viral on social media, Faizan, along with four other Muslim men, was seen being beaten up by policemen while being forced to sing the national anthem and 'Vande Mataram'.
Delivering the verdict on a petition filed by Faizan's mother for a probe by a Special Investigation Team (SIT), Justice Anup Jairam Bhambhani said there are allegations of gross violation of human rights by the yet-to-be identified policemen who were 'motivated and driven by religious bigotry', and the fact that the perpetrators themselves are members of the investigating agency does not inspire confidence.
Observing that the police probe did not serve the spirit of the Supreme Court's ruling on hate crimes being dealt with alacrity, Justice Bhambhani asserted that 'mob-vigilantism' does not cease to be so when perpetrated by policemen themselves and, if anything, the 'element of abomination gets aggravated' when they are committed by persons in uniform.
'Far from preventing incidents of hate-crime, in the present case, admittedly some policemen are found to have indulged in mob-violence and mob-vigilantism inter alia against the petitioner's son,' the court said.
'In the circumstances, this court is persuaded to dispose-of the petition, by directing that investigation in case FIR.. dated 28.02.2020 registered at P.S.: Bhajanpura under sections 147, 148, 149 and 302 of IPC shall forthwith stand transferred to the CBI, New Delhi for further investigation, in accordance with law,' ordered the court.
In its 38-page judgment, the court observed what the Delhi Police have done so far is 'too-little, too-late' and there are various anomalies and aberrations in their investigation so far.
In the video footage, the court noted, several policemen are clearly seen surrounding, dragging, kicking and striking blows on Faizan and the other young men with batons and lathis, abusing them, and ordering them to sing the national anthem while they lay seriously injured and helpless on the roadside.
The petitioner, it said, was examined by the crime branch of Delhi Police only on March 18, 2020 when the incident admittedly took place on February 24, 2020.
Even after more than four years, not even one policeman involved in the alleged abuse and assault has been "conclusively identified" and the perpetrators are still at large, the court said.
The court questioned why Faizan was taken to the police station and not for further treatment as per the advice of the doctors after the incident and why no investigation was conducted in relation to what transpired there.
'That issue appears to have been brushed under the carpet by the police.. Even assuming there was no custodial violence, the very fact that the police kept Faizan at the police station when he was evidently in need of critical medical care itself smacks of criminal neglect of duty, if not something worse,' the court said.
The police's stand that all CCTV cameras inside the station were malfunctioning and therefore there was no footage was 'very convenient' and in non-compliance with the top court's directive, which cannot be countenanced, the court added.
It further said that 'sophisticated' forensic tests on the on-duty police officers after four years of the incident, when they ought to have been 'persons of interest' at the very inception, showed that probe has not proceeded as it should have.
'Though now the Investigating Officer informs the court that they have identified a head constable and a constable who were present at the spot, as possible suspects, it is their case that the said two policemen have given deceptive responses in their polygraph tests, though their voice samples have matched the recording in the available video-footage,' the court noted.
'The investigation has evidently been tardy, sketchy, and conveniently sparing of the persons who are suspected to be involved in brutally assaulting the petitioner's son. What is worse is that the suspects were entrusted to act as custodians of the law, and were in a position of power and authority, but seemed to have been driven by bigoted mindsets,' said the court.
The court asserted that a fair investigation, and not just fair trial, is part of Article 21 (right to life and personal liberty) of the Constitution, without which the credibility of the justice dispensation system would suffer and the faith in the judicial process would be eroded.
'Transfer of investigation is necessitated to guard the credibility of the investigation and to instil confidence in the victims as to the fairness of the process, if for no other reason,' the court said.
Kismatun, in her plea filed in 2020, alleged that police assaulted and illegally detained her son, and denied him critical healthcare due to which he succumbed to injuries on February 26 that year after being released.
Represented by advocate Vrinda Gorver and Soutik Banerjee, she sought directions for a court-monitored fair investigation by a special investigation team.
The city police had argued that since policemen were wearing riot-gear, including helmets, it was not possible to identify them from the footage.
They said the deceased was brought to Jyoti Nagar police station from the hospital after the incident for his own safety as he was reluctant to go home due to the prevailing communal tension.