"Investigating Agency Cannot Cover Up Flaw By Recording Supplementary Statements": Delhi Court Discharges 10 Men Of Graver Offence In Riots Case

Observing that the investigating agency cannot cover up the flaw in the case by recording supplementary statements, a Delhi Court has discharged ten accused persons in a case concerning North East Delhi riots.

Additional Sessions Judge Vinod Yadav discharged accused namely Mohd Shahnawaz, Shahrukh, Rashid, Azad, Ashraf Ali, Parvez, Md. Faisal, Rashid @Monu and Mohd. Tahir under sec. 436 of IPC mischief by fire or explosive substance with intent to destroy house etc). However, the Court directed the Chief Metropolitan Magistrate to try other offences in the FIR as the same were triable by the Magistrate.

"I am afraid that the investigating agency cannot cover up the said flaw by way of recording the supplementary statements of complainant(s), if the ingredients of Section 436 IPC were not there in their initial written complaints made to the police," the Court said.

It added "This Court is conscious of the fact that cases of communal riots have to be considered with utmost sensitivity, but that does not mean that the common sense should be given go­by; mind has to be applied even at this stage with regard to the material available on record."

FIR 138/2020 was registered on 04.03.2020 on a written complaint made by one Brijpal, wherein he stated that his rented shop allegedly was looted by the riotous mob on 25.02.2020 at about 9.30 PM.

It was thus the case of accused persons that the they were falsely implicated in the matter by the investigating agency and that there was an "unexplained delay" of about eight days in registration of FIR.

It was also submitted that both the complainants had neither specifically named any of the accused persons in their respective written complaints nor any specific role was assigned to them.

Going through the material available on record, the Court was of the view that:

"The said complainant has not stated a single word regarding committing mischief by fire or explosive substance by the riotous mob in his aforesaid shop on 25.02.2020, i.e on the date of incident. Even in his supplementary statement(s) dated 04.03.2020 and 09.04.2020, he has not stated a single word regarding putting on fire of his shop by the riotous mob."

With regards to the other complainant's statement, the Court took note of the fact that he mentioned that in February 25, 2020 he found shutters of the shop to be broken and looted by the riotous mob. Accordingly the Court observed:

"This Court is not able to comprehend as to how he could prefer the said complaint(s) to police on 24.02.2020 when he himself had visited his shops on 25.02.2020, meaning thereby that prior to his visit to the shops on 25.02.2020 he was not aware about the fate thereof."

Observing that there are few questions which the investigating agency has to answer during trial, the Court said:

"This Court is further not able to comprehend as to how an incident which took place on 24.02.2020 can be clubbed with the incident which occurred on 25.02.2020, unless and until there is clear evidence to the effect that same unlawful assembly of rioters was operating on both the aforesaid dates and there has to be specific witnesses in this regard."

Accordingly, the Court while discharging him of graver offence, 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 28.

Title: State v. Mohd. Shahnawaz & Ors.

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