New Delhi: Revisiting the powers of a magistrate to direct investigations, a Delhi sessions court has set aside an April order that directed Delhi Police to probe the alleged role of Bharatiya Janata Party (BJP) leader Kapil Mishra in the 2020 North-East Delhi riots.
On Monday, special judge (PC Act) Dig Vinay Singh of the Rouse Avenue Courts quashed the order of Additional Chief Judicial Magistrate (ACJM) Vaibhav Chaurasia, terming it “fundamentally flawed, illegal, and improper”.
“The impugned order reveals a serious jurisdictional error that makes the order illegal and unsustainable concerning the ‘first incident’. It is illegal, improper, and incorrect, as it exceeds jurisdiction and constitutes a case of jurisdictional overreach,” the court held in its 36-page decision. Mishra, the Delhi minister for art, culture and language, holds additional portfolios including law and justice, labour, employment, development, and tourism.
On 23 February 2020, Mishra, then a Delhi MLA, was seen near the Jaffrabad protest site shortly after making a public statement demanding the removal of anti-Citizenship Amendment Act (CAA) demonstrators. The complainant, Mohammad Ilyas, alleged that Mishra, along with several associates, blocked a road in Kardampuri and damaged street vendors’ carts, while the then DCP (Northeast), Ved Prakash Surya, allegedly stood by and warned protesters to disperse or “face consequences”.
These allegations, which Mishra has denied, became the basis for Ilyas’s plea seeking registration of an FIR. The Delhi Police maintained that the 44-year-old played no role in the riots and was being framed as part of a “well-planned conspiracy”.
Ilyas first moved an application under Section 156(3) of the erstwhile Code of Criminal Procedure (CrPC), a provision that allows a magistrate to direct the police to register an FIR and investigate a cognizable offence. After the Bharatiya Nyaya Sanhita (BNSS) came into force on 1 July 2024, he refiled it under the corresponding Section 175(3).
Magistrate’s April 1 order
In April, the magistrate had directed “further investigation”, criticising the Delhi Police’s larger conspiracy theory that blamed anti-CAA protesters for the riots.
He noted that the police narrative was based on “guesswork, assumptions and interpretation”, and found contradictions in Mishra’s own interrogation, suggesting his presence at the site. The order also sought the examination of DCP Surya to clarify what transpired that day.
Both Mishra and the Delhi Police challenged the order, arguing that the magistrate overstepped jurisdiction since a larger conspiracy case under the Unlawful Activities (Prevention) Act (UAPA) was already being tried before a special court. The sessions court stayed the order on 9 April and has now quashed it entirely.
Judge Singh held that the magistrate could not have ordered further investigation when the existing FIR was already under trial. “The ACJM could not have ordered such a further investigation because FIR No. 59/2020 was already under trial following the submission of a final report. Under Section 193(9) of the BNSS, such a further investigation could not have been ordered after cognisance was taken by the special judge,” the court said.
If the magistrate believed the “first incident” involving Mishra was not covered in the FIR, the proper course would have been to direct registration of a new FIR, not a further investigation, it said. “Judicial orders, especially those affecting someone’s liberty, must be unambiguous. The ACJM should have explicitly directed registration of a new FIR if he believed the incident was not investigated,” the court added.
What counts as a cognizable offence
The sessions court also examined whether the complaint disclosed a cognizable offence. Under Indian law, a cognizable offence allows the police to register an FIR and arrest without a warrant, as in cases of murder or rioting. “Mischief” is a non-cognizable offence unless committed by five or more persons with a common unlawful object.
Here, the complaint did not specify the number of Mishra’s associates or any act of violence, only that vendors’ carts were damaged. The magistrate inferred that more than five persons were present based on Mishra’s interrogation in another case.
“To assume a cognizable offence, the ACJM relied on analogies and inferences from Kapil Mishra’s statement… The complaint does not explicitly mention any violence,” the court said, calling this approach legally “unsustainable”.
DCP’s role & public servant protection
The court also faulted the magistrate’s direction to interrogate DCP Surya, noting that the allegations related to acts performed “in discharge of official duties”.
Under Section 175(4) of the BNSS, when a complaint concerns a public servant acting in an official capacity, the magistrate must first receive a report from a superior officer and consider the official’s own account before ordering an investigation.
“Obtaining a report from a superior officer was essential before any investigation could start, and the public servant should have been heard. This was not done,” the judge noted.
Even if a fresh FIR had been ordered, it would have been legally unsustainable for lack of compliance with this provision.
The sessions court also took exception to what it called the magistrate’s “unwarranted, speculative, and prejudicial remarks” on the Delhi Police’s broader conspiracy case, which is pending before a higher court. “Instead of focusing on whether the first incident disclosed a cognizable offence, the ACJM examined and commented upon matters under trial, engaging in speculative interpretations akin to a trial,” Judge Singh observed.
The court cautioned that such comments risked pre-judging the merits of an ongoing case.
Concluding that the impugned order “viewed from any perspective” was unsustainable, the sessions court ruled: “The impugned order is jurisdictionally flawed and legally unsustainable… It is set aside regarding the direction for further investigation into the incident mentioned in paragraph 2 of the application, referred to as the ‘first incident’.”
(Edited by Sugita Katyal)
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