A Delhi court has set aside a 2017 order of a magistrate directing the city police to register a case to ascertain the deaths of two people during the 1984 anti-Sikh riots, saying sympathy for the loss, however genuine, cannot substitute the legal foundation necessary to sustain the proceedings.Special Judge Bhupinder Singh was hearing a revision plea by the Delhi Police challenging a January 2017 order of a magisterial court, directing the station head officer (SHO) of Paharaganj to lodge an FIR regarding the deaths of one Amir Singh and a person named Narender Singh during the 1984 riots.The judge, who set aside the order, said that while remaining conscious of the anguish of the complainant and the tragedy underlying the matter, it has to decide the proceedings based on the material and the law.“Sympathy for the loss, however genuine and understandable, cannot substitute for the legal foundation necessary to sustain the proceedings,” he said.Judge Singh, in an order dated August 31, noted that the magistrate had passed the order on a plea under Section 156 (3) of the erstwhile Code of Criminal Procedure (CrPC)  seeking directions to register an FIR , besides taking action against the then deputy commissioner of police (DCP) of central district, Amod Kanth and the former SHO of Paharganj, S S Manan.Under the section, now corresponding to Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a magistrate can direct the officer-in-charge of a police station to investigate a cognisable offence. Advocate Suraj Rathi appeared for Kanth and Manan.In its order, the court said that the magistrate’s direction does not expressly order registration of an FIR against any particular police officer and instead it was for the “limited purpose of ascertaining the cause of death”.It said, “The court is therefore faced with a situation where two retired police officers, specifically named by the complainant and made parties to the proceedings, are exposed to the consequences of a criminal investigation concerning an incident several decades old, while the stated purpose of the FIR is merely to ascertain the cause of death and no fresh material connecting either of them with the fatal injuries has been identified.”The court said that where identified individuals are sought to be brought within the ambit of a criminal investigation after several decades, particularly in circumstances where previous inquiries have taken place and contemporaneous material does not implicate them, the magisterial court must be satisfied that there is a genuine and discernible investigative foundation.“In the peculiar circumstances of the present case, the matter has already passed through various inquiries; the medical cause of death has been established; contemporaneous material attributed the death due to cross firing; the proposed witnesses have not been shown to have contemporaneously implicated the police; the application identifies no fresh medical, forensic, documentary or physical evidence; and the original complainant himself did not pursue the relief sought by him in the manner now suggested,” the court said.It said that in such circumstances, permitting the criminal process to remain open against persons who have long since retired, without a demonstrable fresh basis, would not advance the cause of justice.“Every dispute cannot be kept alive indefinitely merely because the passage of time has not produced a definitive adjudication acceptable to one side. There is also a point at which, in the absence of fresh and credible material, finality must attach to matters which have already been examined through the available institutional processes, and the present case, in the considered opinion of this court, has reached that stage,” the judge said.“The court reiterates that it is not conducting a mini-trial. It is not deciding whether the mob or the police or the cross firing or the army or any other factor ultimately caused the fatal injuries,” he added.“The question is whether the Additional Chief Metropolitan Magistrate (ACMM), on the material before him, had sufficient basis to direct registration of an FIR for the stated purpose after several decades. The answer must be in the negative,” Judge Singh said.He said the ACMM’s order suffers from non-consideration of material circumstances, failure to identify the actual investigative question, absence of consideration of the previous inquiries and contemporaneous versions, and inadequate application of mind to the extraordinary circumstances in which the jurisdiction under Section 156(3) was invoked.Setting aside the magistrate’s order, the judge said that he was not pronouncing a final verdict on the question whether the deceased were killed by a mob or cross firing or by any police excessiveness or any other reason. “No finding is being recorded on the guilt or innocence of any person. The present order is confined to the legality and propriety of the impugned direction under Section 156(3) of the CrPC,” he said.“The scars left by communal violence do not disappear merely with the passage of time. For those who have lost their near and dear ones, the memory of such loss may remain a wound which time may soften, but can never completely erase,” the court said.