Delhi High Court rejects 2020 riots accused Devangana Kalita’s plea seeking videos, WhatsApp chats

Permitting Kalita to inspect the malkhana for unrelied upon documents, even as the prosecution opposed the request citing the terror law, UAPA, under which the accused have been charged, Justice Neena Bansal Krishna observed that the principles of fair trial and transparent judicial proceedings “cannot be compartmentalised into terror offences and the regular criminal offences”.

“It is not the nature of trial but the rights of the accused, who is facing a trial, which is the focal point in any criminal trial. The Constitution grants equal protection to every kind of accused and such artificial distinction would not only be contrary to the criminal jurisprudence but would also shake the foundations of right to life and liberty, which are the core values of the constitution of India. This argument, therefore, is not tenable,” the court held.

The trial court has completed hearing arguments on framing of charges, and the prosecution is expected to rebut on specific aspects of framing of charges.

The prosecution had earlier told HC that a stay on the trial court process “is causing detriment to the prosecution” and also prejudices the rights of the accused, hampering the administration of judicial process.
On Thursday, the prosecution, referring to the stay, had requested before Chief Justice DK Upadhyaya to transfer the case away from Justice Krishna since she had not pronounced the final order in Kalita’s plea seeking video footage and police chats, despite reserving the case for orders in January. CJ Upadhyaya had orally assured that he will look into the issue on the administrative side.

In September 2024, while allowing the trial court dealing with the case to continue hearing the arguments on charge, Justice Neena Bansal Krishna had, however, restrained it from passing any final order to that effect.
Kalita, in her plea from 2023, was seeking copies of electronic evidence and documents relied upon or referred to in the police report filed in the larger conspiracy case after a trial court, in August 2023, had refused to supply CCTV footages and WhatsApp chats of police groups, to the accused.

While dismissing Kalita’s plea on Friday, Justice Krishna reasoned that the WhatsApp chats of the police officers were not relied upon by the prosecution and an accused is entitled access only to the relied upon documents and, at best, a list of unrelied upon documents, but not copies of the unrelied upon documents. The court recorded that Kalita had already been provided with all the material relied upon by the prosecution, and refused to interfere with the trial court’s August 2023 order.

In August 2023, the prosecution had argued before the trial court that the material as being sought by Kalita were not supplied as they are relevant for investigation of other cases of riots of Northeast Delhi. The court had reasoned that such CCTV footage is not required to be supplied “considering… that investigation is going on in other individual cases of riot”.

Kalita had also sought communication/information/chats of police operation groups, not relied on by the prosecution, including WhatsApp chats. The trial court had refused to allow inspection of the same, after the prosecution argued that these contain sensitive information/privileged communication.

Justice Krishna on Friday also disposed of another petition by Kalita where she was seeking inspection of documents not relied upon by the prosecution in the chargesheet but was used during the police probe.

“…in order to ensure fairness of procedure and to allay any perceived prejudice, it is well settled that the accused is not only entitled to list of un-relied documents, but also to the inspection, to be able to address arguments on Charge effectively,” Justice Krishna held.

Justice Krishna had reserved the plea for orders on January 8.

Kalita, along with 17 others, is facing charges of pre-planned conspiracy to allegedly spark riots in Northeast Delhi between February 23 and 25, 2020. The accused have been charged under provisions of the Indian Penal Code, Prevention of Damage to Public Property Act, Arms Act, and Unlawful Activities (Prevention) Act 1967 in the FIR. The chargesheet in the case was filed in September 2020, with four supplementary chargesheets filed, the last being in June 2023.