‘L-G bypassed Delhi govt to give prosecution sanction in 7 cases’
New Delhi: Prosecution sanctions by Lt Governor VK Saxena in seven cases, including the one against Delhi riots accused Tahir Hussain, could lead to the alleged perpetrators going “scot-free” as he is not the approving authority, Delhi government sources claimed on Thursday.
The sources claimed that the executive powers to issue a valid sanction for prosecution under the section 196 of the Code of Criminal Procedure (CrPC) are solely vested with the elected government. “... this act of L-G V K Saxena has rendered such sanctions invalid enabling the accused criminals to go scot free,” a source claimed.
There was no immediate reaction from the office of the Lt Governor (L-G) on the claims.
The seven cases registered under the CrPC include the one against Hussain in connection with the 2020 northeast Delhi riots as well as a matter involving former JNU student leader Shehla Rashid for her alleged tweets against the army.
Under the section, in cases of crimes committed against the State such as hate speech, hurting religious sentiments, hate crimes, sedition, waging war against state, promoting enmity, any court can take cognisance of such cases only after the approval or sanction of the “state government”.
In a statement last month, the government had alleged that the L-G gave “approvals” in some cases though he is not the approving authority. “Therefore, in all such criminal cases in the last few months,
sanctions given for prosecution are invalid. When the accused will raise this point in the courts, they will be released,” it had said.
“It was a settled law and practice in Delhi for over three decades and followed by all the previous LGs that prosecution sanction under section 196 of the CrPC are ‘transferred subjects’ falling squarely under the domain of the elected government,” the source said. This means that the minister-in-charge is the competent authority and the minister’s approval was supposed to be taken in all these cases, the sources claimed.
The source said that “after taking the minister’s approval, the file would be sent to the L-G to decide whether he differed from the decision of the minister and whether he would like to refer it to the President of India.” “However, the matter was referred to the law department of the Delhi government for a fresh opinion by the chief secretary on December 15 last year,” the source said.
Subsequently, the law department gave its opinion on January 3, clearly stating
that “state government” in this law means the elected government in Delhi, the sources claimed.
The law department observed: “The subjects ‘Criminal Law’ and ‘Criminal Procedure’ are transferred subjects falling under Entry 1 and 2 of the Concurrent List. In view of the above, it is the state government which is to take decision under Section 196 of the CrPC, therefore, this file needs to be processed through the Hon’ble Minister (Home) for consideration and onward submission to the Hon’ble Lt. Governor for obtaining opinion “.
Going against the department’s opinion, Saxena directly called the files through the chief secretary and “illegally authorised Prosecution Sanctions, bypassing the elected government”, the sources said. “Records of the home department revealed that seven such cases of prosecution sanctions have been illegally approved by the L-G in the past few months, pushing the criminal
justice system of Delhi into a huge crisis,” the source said and added that “this illegal act of L-G Saxena has rendered such prosecutions invalid enabling the accused criminals to go scot free”.
The seven cases also include matters involving Aumkareshwar Thakur, who is accused of auctioning pictures of Muslim women on Twitter; Abhishek Mishra, who is accused of hurting sentiments of the people on social media and spreading enmity in the name of religion; nine persons allegedly involved in pelting stones and glass bottles at a temple in Old Delhi and Zafar Islam Khan, who is accused of posting instigative and provocative posts.