A Delhi court on Tuesday dismissed an application by Pinjra Tod members Devangana Kalita and Natasha Narwal, seeking a court-monitored probe in a case related to the February violence in northeast Delhi, in which they have been booked under a stringent anti-terror law.
The Pinjra Tod members are also students of the Jawaharlal Nehru University.
Additional Sessions Judge Dharmender Rana said the apprehensions of the accused, Kalita and Narwal, in the case that the police were not doing a fair investigation seemed to be based "more on anxiety generated because of incarceration and less on any substantial basis or sound logic".
Kalita and Narwal have been booked under the Unlawful Activities (Prevention) Act (UAPA) for being part of an alleged "premeditated conspiracy" in the riots.
The court said in its order that the police cannot be denigrated simply because some of its members went amiss and there were no valid grounds to saddle the already over-burdened investigating agency with any additional responsibility in the name of monitoring the investigation.
"In my considered opinion, the accused have an undeniable fundamental right of fair trial which was essentially founded upon the bedrock of fair investigation.
"However, the apprehension of the accused in the case seems to be based more on anxiety generated because of incarceration and less on any substantial basis or sound logic," the judge said.
The accused have failed to point out any material irregularity in the investigation carried out by the police to substantiate their doubts, he said. The court said that the investigation, in itself, was a very intricate and strenuous exercise.
"It is like taking a dip every time in deep sea to dig out the oyster carrying the pearl. Considering the intricacies involved, the legislature in its wisdom has left the investigation within the exclusive domain of the investigating agency," the judge said.
"In my considered opinion, neither the court nor the accused can dictate the mode and manner in which the investigation is to be conducted by the investigating officer (IO)," he said.
The court said the power vested in it under the Code of Criminal Procedure cannot be exercised at the behest of the accused for "fishing and roving" purposes.
It added that the court had in its earlier order directed the DCP concerned to ensure a fair investigation in the case.
The court said that the prayer which also calls for call data, video footage, among others, also deserved to be rejected on account of vagueness and lack of specificity.
The communal clashes had broken out in northeast Delhi on February 24 after violence between citizenship law supporters and protesters spiralled out of control leaving at least 53 people dead and around 200 injured.
"In order to grant the relief claimed, the court had to first presume that there are some pro-CAA leaders, then the court has to presume their names, their phone numbers etc and then acting upon the presumption ask the concerned agencies to preserve their record and analyse voluminous data", the court said.
"The IO had informed the court that he has collected a number of video footage and is in the process of collecting the remaining footage, including the video footage from journalists, metro stations and the professional photographers engaged by the Delhi Police to cover the protests," it said in its order.
Mechanically ordering the wholesale seizure of call data of police officials, so-called witnesses or so-called real culprits, police station diaries or cellphone tower data, among others would not only raise privacy concerns and lead to unnecessary interference in other pending investigations but also not serve any practical purpose in the case, the court said.
During the hearing held through video-conferencing, Additional Public Prosecutor Irfan Ahmed, appearing for the state, opposed the application, saying that if there are certain witnesses or evidence who believe the version of the accused version, they can be produced by them in their defence.
This was not the stage of producing these witnesses or call detail records or videos or any evidence before the court, the public prosecutor said.
Ahmed added the investigating agency was in the process of seizing all the CCTV footage of different places and spots where the riots took place.
Since Kalita and Narwal were the accused in the case, the law does not permit them to guide, control and supervise the investigation, he said.
Advocate Adit S Pujari, appearing for the students, alleged that the investigation into the alleged conspiracy behind the Delhi riots was not in accordance with any legally accepted tenets of a fair investigation.
Multiple contemporaneous videos of the Jaffrabad protest sites were taken by the police and by reporters present at the area and these would present the true state of affairs before the court but the police is deliberately withholding such an important piece of evidence, the lawyer alleged.
He added that there were allegedly videos of members of the police force waiting on the sidelines or actively assisting persons bringing stones in the area.
Pujari alleged that the local police was animus against protestors and it was evident from the videos that police used excessive force and as such the Delhi Police was not an impartial investigator of the case.
Pinjra Tod (Break the Cage) was founded in 2015 with an aim to make hostels and paying guest accommodations less restrictive for women students.
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