'Cannot act on your whims & fancies', court raps Delhi Police

ATUL KRISHAN

New Delhi, Feb 3 (IANS) Delhi Police officials had to face the ire of a court here which noted that the investigation agency cannot "act as per their whims and fancies" and that the courts have ample power to check the misuse or abuse of powers by the probe agencies.

The court was deciding a bail application on January 28 when it observed that both the complainant and the accused had encroached upon government land and Delhi Police didn't do anything about it.

When the court asked the police to transfer the investigation to some specialised agency dealing with land grabbing matters, the Deputy Commissioner of Police (DCP) Central District replied that "it being the prerogative of the Investigating Agency the matter was not transferred".

To this the court said that the report of DCP was based on wrong premises besides being evasive in nature.

"Even if the investigation is the prerogative of the investigation agency, the IO as well as his senior officers, including the DCP and above rank police officers should keep in mind that this discretion is not absolute.

"The investigation agency cannot act as per their whims and fancies and the courts have ample power to check the misuse or abuse of powers by the investigation agencies," the court noted.

It also said that the energy of senior police officers should better be spent in improving the investigation mechanism instead of justifying manifestly improper conduct of investigating officers.

The case and police lapse

An FIR was lodged at the IP Estate police station in November 2021 by one Rahees. He alleged that Mehfooz and his aides broke into his shop and stole valuables.

The police were told that the jhuggi cum shop was built on government land and it was an unauthorised colony.

Initially the police lodged an FIR under sections 448, 380, 506 and 34 of IPC. Later on almost 15 days after the incident, Sana Begum, the wife of Rahess, made a supplementary statement and alleged that she was sexually harassed by the accused and his aide Faheem. The police then added sections of sexual harassment in the case.

Accused Faheem then moved for anticipatory bail through his counsel Deepak Sharma. The counsel argued that the case was fake and there were lapses in the police story.

"The investigating officer (IO) didn't serve any notice under section 41A CrPC. to the accused to join the investigation, which was mandatory. The allegations of sexual harassment were made as an afterthought. Faheem was not named in the FIR. The main accused Mehfooz had already been granted regular bail," argued Deepak Sharma while demanding bail.

The court noted that the IO failed to produce a case diary to show that the accused was evading due process of law. It also noted that the report of first IO, Beniwal showed that no incident as mentioned in the FIR took place. The court also noted that Rahees and his worker Bhura didn't say anything that Sana Begum was sexually harassed. The court while noting it granted bail to Faheem.

Court's suo moto on encroachments

On May 5, 2022, the court directed the Joint Commissioner of Police to look into the matter. On May 20, 2022 the police informed the court that DCP Central District will fix the responsibility and time was sought.

However, after this no reply was filed by the DCP Central and on July 27, 2022 the court sent a copy of the order to the Special Commissioner of Delhi Police for compliance.

After this on August 4, Additional DCP Akshit Kaushal told the court that they were looking into the matter and will inform the court on August 5.

However, again no communication was received from the DCP Central.

In December 2022, the court got a response from the DCP Central in which it was said, "The present case was examined on merits. It was found to be devoid of seeking intervention of any specialised investigation or other agency. Hence, the investigation 'being the prerogative of the investigating agency' was not transferred."

The court said that the report of DCP was based on wrong premises besides being evasive in nature.

"Court orders were not complied and the court was kept in dark despite repeatedly giving orders.

"What to talk of the IO, even a police officer ranked as high as Addl. DCP gave an assurance to the court that he will communicate to the court about the decision taken by his senior police officers regarding investigation to be done by a specialised agency in August but did not do so. Even on later dates, the information was not given to the court. This in itself shows the callous attitude of the senior police officers over such an important matter," the court noted while coming down heavily on police. 

"Additional DCP Akshat Kaushal informed that a decision relating to transfer of investigation to some specialised agency dealing with land grabbing matters appeared to be necessary. Hence, for the present DCP to say that the investigation being the prerogative of the investigation agency, was an uncalled for remark and should have been avoided. DCP should have made herself well aware of the facts, beforehand," the court noted.

(Atul Krishan can be approached at [email protected])