A single-judge bench of Justice Anup Jairam Bhambhani observed in its order, “Without making too much of a harsh comment, this court is constrained to observe that the investigation in the present case 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.”

The high court further observed that expeditious, fair and complete investigation is the sine-qua-non (absolutely essential) of a “fair trial” adding that the Supreme Court had held that a fair investigation is now considered part of the fundamental right under Article 21 of the Constitution of India.

“The leitmotif that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’, must not be limited only to court proceedings, but must also apply proprio-vigore (by its own force) to investigation of crime. Investigation must also be seen to be fair and just. Failing that, the credibility of the justice dispensation system would suffer and the faith in the judicial process would be eroded,” the high court underscored.

It further observed that apart from the fact that the “custodians of the law are themselves” accused of having committed its breach, the “perpetrators of the offence are themselves members of the agency that is investigating them”.

Noting that the situation does not “inspire confidence”, the high court said it had noticed various “anomalies” in the Delhi Police’s investigation so far in the case.

“In the opinion of this court, transfer of investigation is necessitated in the present case, 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. In the circumstances, this court is persuaded to dispose-of the petition, by directing that investigation…shall forthwith stand transferred to the Central Bureau of Investigation, New Delhi for further investigation, in accordance with law. It is also directed that the CBI would be entitled to add to the FIR any other offence(s) as may be found to be made-out in the case. It is made clear that the investigation conducted thus far by Delhi Police, as well as all material and evidence collected and all statements recorded by them, shall form part of the records of the case, and shall be dealt with conjointly with the material, evidence and statements that the CBI would collect/record in the further investigation,” the high court said.

The high court also directed the investigating officer presently seized of the investigation to transfer all records, including all material and evidence collected and all statements recorded in the case so far, to the director of the CBI, New Delhi, within seven days. It further directed the CBI director to assign the matter to an appropriate officer for expeditious further investigation, as per law.

Justice Bhambhani said nothing in the high court’s judgment should be taken as an expression of its opinion on the “evidence collected in the investigation so far”.

Delhi High Court flags ‘criminal neglect of duty’ by police

In a 38-page order, Justice Bhambhani observed the existence of two sets of video footage; one which showed Faizan alone “being encircled and beaten mercilessly by policemen” and the second which showed “several young men, including Faizan, lying in an injured state on the road near Kardampuri pulia and the 66-foota road, and being surrounded and brutally assaulted by policemen”, was not disputed.

The high court, in fact, said that even if it is assumed that Faizan or the other young men had sustained some injuries earlier on during rioting, several policemen present at the spot can be “clearly seen surrounding, dragging, kicking and striking blows on Faizan and the other young men with batons/lathis; abusing them; and ordering them to sing the national anthem while they are lying seriously injured and helpless on the roadside”.

The court said that, admittedly, all of this happened on February 24, 2020. However, the Crime Branch of Delhi Police examined the petitioner-mother for the first time only on March 18, 2020, and more than four-and-a-half years had elapsed since. It then said that not even one of the policemen “involved in the abuse and assault has been conclusively identified” in the course of the investigation so far.

Taking note of the documents pertaining to the deceased from Lok Nayak Hospital, the high court said when Faizan was handed over to his family on February 25, 2020, he was not in a good medical condition at all and his family felt it necessary to take him soon thereafter to Lok Nayak Hospital Emergency, where he was found in need of specialised interdisciplinary medical care.

The court questioned that if that was the deceased’s medical condition, why was Faizan kept at the Jyoti Nagar police station, “purportedly at his request for his own safety and welfare”.

The high court also took note of GTB Hospital’s discharge summary of February 24, 2020, as per which Faizan was referred to “Neuro Surgery, Ortho”. Justice Bhambhani said though the record showed that subsequently Faizan was taken to the orthopaedic department, where he was attended to (and was advised review after one week in the OPD), the record did not show that he was taken for assessment to the neurosurgery department as had been advised by GTB Hospital.

“It is therefore inexplicable as to why the police took Faizan to the police station instead of taking him for further treatment as per the advice of the doctors at GTB Hospital. Worse still, no investigation has been conducted so far in relation to what transpired at P.S. (police station) Jyoti Nagar after Faizan was brought there from GTB Hospital. To add to this, is the stand taken by the police that all CCTV cameras installed at P.S.: Jyoti Nagar were not functioning at the relevant time…The narrative that all CCTV cameras installed at the police station were malfunctioning at that crucial time and that, therefore, no CCTV footage is available from within the police station to show the condition of any of the persons who were there at that time also does not inspire confidence,” the high court said.

The court said the issue of whether anything happened to Faizan when he was kept within the confines of the Jyoti Nagar police station overnight and until late the next day, had remained unaddressed and appeared to have been “brushed under the carpet by the police”.

It said that 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”.

Justice Bhambhani also observed that the case pertained to allegations of gross violation of human rights–wherein the “unlawful actions of the policemen, who are yet to be identified, were motivated and driven by religious bigotry and therefore would amount to a hate crime”.

Referring to the Supreme Court’s 2018 decision in Tehseen S. Poonawalla vs. Union of India & others, the high court said that the apex court has enunciated the meaning and articulated the “abhorrent” nature of hate crime, in the context of mob vigilantism and mob violence.

“It must be understood that mob vigilantism and mob violence do not cease to be so merely because these are perpetrated, not by ordinary citizens, but by policemen themselves. If anything, the element of abomination gets aggravated if hate crime is committed by persons in uniform,” the high court said.