2019 Jamia Violence : Supreme Court Requests Delhi High Court To Decide Soon Students' Plea For FIR Against Alleged Police Atrocities

Senior Advocate Colin Gonsalves, appearing on behalf of the petitioners, submitted that despite being pushed from pillar to post, "not a single FIR" had been registered. In March, 2021, after hearing the submissions made by the counsel representing the parties, a Division Bench led by former Chief Justice D.N. Patel had issued an order releasing the matter from 'part heard'. Gonsalves argued –

"I came here in the Jamia case. This Court felt I should go back to the High Court. I went back to the High Court. Now, three years have passed. We have finished arguments before the High Court. I finished, the two Additional Solicitor-Generals finished. And then, this order was passed. And yet, not a single FIR of the students registered."

Justice Nath asked –

"Matter is pending before the High Court. Why do you not pursue this before the High Court?"

Gonsalves began answering –

"I pursued for two years…"

He was cut off by Justice Nath, who offered another alternative –

"You could have filed an application before the Magistrate and gotten an FIR registered."

Gonsalves responded –

"That would have made it even worse. For a simple thing like registering an FIR for the injured students, the Supreme Court has said go to the High Court. I went to the High Court. Now it is de-'part heard'. I have to start from zero again."

Justice Nath replied –

"That's a practice to be followed if the Bench has released it for whatever reason that we do not know."

Gonsalves replied –

"But, this matter was meant to be heard urgently. That is why I have a single prayer before this Court to register the FIR. Why should I go back again? We did not expect after two years, it would be de-'part heard'."

Justice Nath pointed out that the order referred to by the senior counsel was passed more than one and a half years ago. But Gonsalves clarified that the writ petition prayed only for the registration of an FIR. Justice Nath enquired –

"This is an SLP against the order of a High Court, right?"

Gonsalves explained that this "single prayer" was made in a connected writ petition –

"With a writ petition also, now. Which is listed today at Item 5.1. Forget the High Court case, forget everything. I have a simple petition. After trying the High Court for three years, I have come back requesting you to register an FIR. Just hear me on this."

Justice Bose asked the senior counsel –

"You want us to do the Magistrate's duty…"

Relying on Lalita Kumari v. Government of Uttar Pradesh [AIR 2012 SC 1515], Gonsalves answered –

"It is not, after Lalita Kumari, it is not. Are the students to take the burden of prosecution on themselves?"

Justice Nath, referring to the power of the Magistrate to order an investigation under Section 156(3) of the Code of Criminal Procedure, 1973, asked –

"Why should we not send you to the Magistrate? There is a procedure provided under CrPC for when the police is not registering your FIR. The Court will get it enquired and you will get your FIR registered."

Gonsalves supplied a quick rejoinder –

"That was before Lalita Kumari. Now Lalita Kumari says the moment you get something that discloses a cognisable offence, the Court must register an FIR, irrespective of whether it has doubts."

Justice Bose clarified –

"We have doubts about invoking our jurisdiction on that issue."

Gonsalves yielded –

"In that case, tell the High Court to finish it within three weeks. The students have suffered. How can the High Court hear it for two years and then de-'part heard' it. However, I was hoping this Court would entertain these petitions praying for an FIR to be lodged."

Putting an end to this discussion, Justice Bose said –

"Not in this case."

Gonsalves tried persuading the Bench –

"Especially in this case. Look at the students…broken arms, broken bones."

Refusing to relent, Justice Bose started orally pronouncing the order –

"Heard Colin Gonsalves, learned senior counsel, appearing for the petitioners. He has brought to our notice an order of the High Court passed on March 19, 2021 by which a Division Bench of the High Court had directed the release of the nine petitions which were remaining 'heard in part' before the Bench. The special leave petition and the writ petition broadly are on the same question which are involved in the nine writ petitions before the Delhi High Court. The grievance of Mr. Gonsalves is that his clients' plea for registering an FIR over certain incidents that took place on December 2019. The substance of the prayer is for registering a first information report and for an independent investigation. We request the High Court to hear out the matter as expeditiously as possible…"

At this juncture, Gonsalves interjected, asking for the Court to specify 'three months' as the time limit for disposal of the matters. However, Justice Bose declared –

"We are not inclined to specify a time limit."

Justice Bose continued dictating the order –

"We are requesting the High Court to hear out the matter early, considering the length of time these matters are pending. So far as the present petitions are concerned, as they are on overlapping points, we do not find any reason to keep them pending. These shall stand disposed of in view of this order."

On the night of December 15, 2019, the Delhi Police had allegedly entered Jamia Millia Islamia and assaulted students, following clashes with student activists who were protesting against the Citizenship Amendment Act outside the campus. They also used batons and tear gas to disperse protesters, reports have claimed. A batch of petitions was filed, inter alia, seeking the setting up of a judicial commission to look into the Jamia violence and registration of first information reports against the erring police officers. The matter is still pending before the Delhi High Court almost three years later.

Case Titles

1. Nabila Hasan & Ors. v. Union of India & Anr. [SLP (Crl) No. 1744/2020]
2. Iman Usmani & Anr. v. Union of India & Ors. [WP (Crl) No. 97/2020]