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HC vacates stay on bail to school owner as Centre-Delhi tussle over riots case continues

Between the Union govt and the Delhi govt, the Delhi Police has a battery of lawyers tussling over who will represent it in the communal riots case.

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New Delhi: The Delhi High Court Thursday vacated its interim stay on the bail granted to Faisal Farooq, a private school owner accused in a case relation to the Northeast Delhi riots, amid a tussle over who will represent the Delhi Police in the matter.

Justice Suresh Kumar Kait asked the Centre and the Delhi government to file written submissions on whether the Lieutenant Governor (L-G) can unilaterally appoint solicitor general, additional solicitor general, and other counsel of the central government to represent the Delhi Police.

The court, however, asserted that the “accused can’t be prejudiced due to delay caused by this controversy”, and vacated its stay.

The confusion has arisen since the Delhi Police report to the Union home affairs ministry but the riots is an issue that concerns the Delhi government.

While Arvind Kejriwal government’s standing counsel (criminal) Rahul Mehra insists it is his office that should be representing the police, Solicitor General Tushar Mehta said L-G Anil Baijal authorised him, along with a panel of special counsel, to appear for the Delhi Police in the case.


Also read: Delhi school owner was in touch with radical Muslim clerics, Pinjra Tod to plan riots: Police


Centre-versus-Delhi spills into courtroom

A trial court had granted bail on 20 June to Farooq, who is charged with hatching a conspiracy to precipitate and aggravate riots in and around the school he owns in Northeast Delhi. While granting bail, Judge Vinod Yadav had opined that it had prima facie not been established that Farooq was present at the spot at the time of the incident.

The Delhi Police challenged this order right away and the case was first heard on 22 June. However, the prosecution counsel has ever since been sparring over who is authorised to represent the Delhi Police in these cases.

On 22 June, after one such argument, Solicitor General Tushar Mehta withdrew himself from the case “out of disgust”.

The spat ensued after Delhi government Standing Counsel (Criminal) Rahul Mehra objected to the presence of Mehta, who is being assisted by Additional Solicitor General (ASG) Aman Lekhi and advocates Amit Mahajan and Rajat Nair.

During the hearing on 1 July, the high court asked Lekhi and Mahajan to produce the permission granted to them by the L-G to represent the Delhi Police.

At this point, advocate Rajesh Mahajan, appearing on behalf Rahul Mehra, submitted that the petition was not maintainable as the Centre had not sought the authorisation of the standing counsel’s office to file for the L-G’s permission. He further asserted that such an appointment cannot be made by the L-G without the aid and advice of the Delhi government’s Council of Ministers.


Also read: FIRs in Northeast Delhi riots ‘sensitive’, can’t be uploaded online: Police to HC


Centre’s counsel says L-G has power when case relates to India’s interests

Rahul Mehra has been relying on a Delhi High Court order from August 2016 to argue against the Centre representing the Delhi Police.

The order had ruled that “it is not open to the Lt. Governor to appoint the Special Public Prosecutor on his own without seeking aid and advice of the Council of Ministers”. The ruling was later confirmed by a Constitution bench of the Supreme Court too.

However, during Thursday’s hearing, ASG Lekhi submitted that the L-G can unilaterally do so, and that the judgment referred to by Mehra does not apply in this case.

This is because, he asserted, the facts of the August 2016 judgment dealt with the appointment of an advocate under Section 24(8) of the Code of Criminal Procedure, which deals with appointment of a Special Public Prosecutor by the central or state government. He argued that law officers, such as solicitor general and additional solicitor generals, do not fall under the definition of ‘prosecutors’.

ASG Lekhi also asserted that the client has a right to select a lawyer of its choice and therefore, it was up to the Delhi Police to decide who should represent it.

He further contended that the judgment did not talk about the powers of the central government to appoint law officers in cases in which it has an interest.

Explaining what this interest was, he pointed out that these can be cases involving laws passed by the central government and affecting the country at large. In the present case, since the Unlawful Activities Prevention Act had been invoked, the central government has an interest, he said.


Also read: Pinjra Tod arrests, Delhi police witch hunt against students show Covid is not a top priority


Not the first time

This isn’t the first time that the central government and the Delhi government have sparred over who should represent the Delhi Police.

The same controversy emerged before Justice Rajiv Shaksher in the Delhi High Court during the hearing of activist Safoora Zargar’s bail plea on 22 June.

A similar spat took place in February also when the court was hearing a petition seeking registration of FIRs against BJP leaders Kapil Mishra, Anurag Thakur and Parvesh Verma for hate speeches.


Also read: United Against Hate, the ‘fact-finding’ group accused of conspiracy in Delhi riots


 

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