A Delhi Court has recently questioned the conduct of Delhi Police in framing charge under sec. 436 of IPC against one Gulfam in connection with a Delhi riots case after remaking that it was beyond comprehension as to how the agency had imported statements of witnesses from a different FIR into the one in question.
Additional Sessions Judge Vinod Yadav discharged Gulfam under sec. 436 IPC (mischief by fire or explosive substance with intent to destroy house etc) after taking note of the fact that there was not a single word in the statements of witnesses or the complainant showing that the riotous mob had committed mischief in Shiv Mandir during the riots.
However, the Court directed the Chief Metropolitan Magistrate to try other offences including sec. 147, 148, 149 and 120B of IPC.in the FIR as the same were triable by the Magistrate.
FIR 90/2020 was registered on March 2 last year alleging that a riotous mob of around 1500-1600 persons had gathered in the area at or around Shiv Mandir and resorted to rioting. It was further alleged that the rioters had converted themselves into various unlawful assemblies and had committed largescale violence, including damage to the vehicles lying parked in the area.
Gulfam was arrested in FIR 90/2020 (present FIR) on 8th May last year pursuant to his disclosure statement made by him in another FIR 86/2020.
It was thus the case of prosecution that the place of incident in the two FIRs were quite nearby and that the same unlawful assembly had been operating in both the area at the relevant time. However, it was submitted that the stage of framing of charge was not the proper stage to dwell upon the said issue and the same would be seen during the course of trial.
On the other hand, it was submitted on behalf of the accused that it was wrong on the part of the investigating agency to import the statements of witnesses or evidence collected in case FIR No.86/2020 in the present case as the same is in total violation of Article 20 (2) of the Constitution of India under the doctrine of "Double Jeopardy".
Statements of two eye witnesses under sec. 161 of CrPC in FIR 86/2020, who had identified Gulfam, were imported in the present FIR. On this, the Court said:
"Admittedly, the statements of said two witnesses have not been recorded in instant case FIR. It is beyond comprehension that under what provision(s) the investigating agency has imported the statements of said witnesses recorded in case FIR No.86/2020, PS Dayalpur in the case in hand."
"Be that as it may, at this stage even if the said issue is kept off the burner and the aforesaid statements are considered on their face value, then also no ingredients of Section 436 IPC are getting made out therefrom."
Going through the written complaint in the matter, the Court was of the view that the complainant had merely stated that that a riotous mob consisting of about 100-150 rioters had damaged the infrastructure of his hall, as a result of which he suffered financial loss to the tune of around Rs.3.60 lakhs.
"The said complainant has not stated a single word regarding committing mischief by fire or explosive substance by the riotous mob in his aforesaid hall on 25.02.2020, i.e on the date of incident. Even in his statement recorded under Section 161 Cr.P.C in the matter on 10.04.2020, he did not state a single word regarding putting/setting on fire of his said hall by the riotous mob on 25.02.2020," the Court observed.
Accordingly, the Court was of the view that the ingredients of Section 436 IPC were not made out either from the written complaint or from the statement recorded under Section 161 Cr.P.C in the case.
"In view of the aforesaid discussion, I am of the considered view that ingredients of Section 436 IPC are not at all made out from the material produced on record by the investigating agency. Except Section 436 IPC, all the offences invoked in the matter are triable by the court of learned Magistrate," the Court said.
The Court directed the CMM to either try the matter himself or to assign it to some other competent Court/ MM while also directing the accused to appear before CMM on September 10.
Title: State v. Gulfam