"It Might Be A Political Hot Potato, But Legally Nothing": Supreme Court Dismisses Delhi Police's Plea In Chief Secy. Assault Case

Mehal Jain

1 July 2021 9:04 AM GMT

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It Might Be A Political Hot Potato, But Legally Nothing: Supreme Court Dismisses Delhi Polices Plea In Chief Secy. Assault Case

The Supreme Court on Thursday dismissed an appeal by the Delhi Police challenging the Delhi High Court order which allowed CM Arvind Kejriwal and Deputy CM Manish Sisodia's plea to provide statement of witnesses in the 2018 alleged assault of then-CS Anshu Prakash."It is the basic principle of natural justice, it is common sense that the accused must have the copy. It might be a political...

"It is the basic principle of natural justice, it is common sense that the accused must have the copy. It might be a political hot potato, but legally, it is nothing. It is not worth it lingering on this matter. It is a good view of the High Court and it is in the interest of liberty and we will affirm it", Justice D. Y. Chandrachud told ASG Aman Lekhi for the Delhi state.

It was Mr. Lekhi's case that the statement in question is not a CrPC section 161 statement at all and that it is a part of the case diary and hence, there was no question of supplying the same at all. "If you proceed on the presumption that it is a statement, then it will have to be supplied. But if the premise itself is incorrect, the circular reasoning will also result in the wrong conclusion", he advanced.

"The May 9, 2018 statement specifically states that it is in continuation of the earlier statement. Once the statement has been recorded, what is this about not giving the copy of the statement? You can't have the investigating agency pick and choose things which are favourable to you. It is the correct order of the High Court", Justice Chandrachud told him.

"The Investigating agency must also abide by the duty to be fair. This is not an oral statement which has been recorded in the case diary, this is a written statement and it will not be fair to the accused to not give it to them. If there is something which will benefit the accused, they are entitled to access it. The purpose of criminal justice administration is not to convict people but to allow criminal justice to run a fair course. Leave it there, there is nothing in this matter", observed the judge.

"Your Lordships have said that evidence has to be given. But it has to be evidence in the manner that law understands. Here, what is recorded is in the case diary. Law makes a distinction between 161(3), 172, 173(5) and (6) and 207 of the CrPC. The obligation to supply under 207 is of the statements", argued the ASG.

He indicated that section 207 requires that in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses;excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173:

At this, Senior Advocate A. M. Singhvi, appearing for the respondents, asked Mr. Lekhi to also read the proviso to section 207 which provides that that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused.

"It is irrelevant because that will apply to the redacted portions of 161. This is not a question of redaction at all! This is the question of a statement not under 161 at all but recorded in the case diary!", repeated Mr. Lekhi.

"By virtue of an Amendment in 2009, 161 statements shall be inserted into the case diary. This order does not deal with amendment or the impact. There was a judgement of the Supreme Court for standardisation, pursuant to which the amendment was brought in. But still, while 161 statements will be inserted in the case diary, but they will not be a part of the case diary. It is only to ensure proper volumes and pagination", he continued.

He indicated section 172 of the CrPC which provides that Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial, and that Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court.

"Because it is part of the case diary, it cannot be treated as evidence! So the question of all evidence being supplied will not in any way rise!", pressed the ASG.

"This is not a question of giving the case diary. What is given is the statement of the person which is reflected in the case diary. That was a part of the earlier statement under 161. So what is directed to be given is the statement under 161. Therefore, 172 will not be applicable", observed Justice M. R. Shah.

"The order of the High Court is wrong in facts and in law. It is a very important matter which will have ramifications elsewhere. The HC says, "Learned senior counsel pointed out that in the statement of V K Jain dated 09.05.2018 which is part of the chargesheet says, 'In continuation with the statement dated 21.02.2018', which prosecution covers that the same is typographical error"...They admit that it is a typographical error. The statement is of 9/5. It is preceded by 21/2. But there is another interceding statement of 22/2!", argued the ASG.

"This is very technical of you. It is a typographical error- it should have been 22. This is all the more reason why they must have a copy of the statement", said Justice Chandrachud.

The Delhi High Court had on October 21, 2020 set aside the 24 July, 2019 Order of the Trial Court wherein the Court did not allow Delhi Chief Minister Arvind Kejriwal and Minister Manish Sisodia to access crucial documents without following the procedure as prescribed by the Code of Criminal Procedure in the Chief Secretary Assault Case

A Single-Judge Bench of Justice Suresh Kumar Kait presided over the matter.

FACTS OF THE CASE

The Petitioner herein had filed an Application under Section 207 of CrPC for supply of certain deficient documents, including the copy of the statement of one witness, VK Jain recorded on 21st February, 2018, and the audio/video recording of the examination of the Petitioners.

The Trial Court declined to supply the copy of the statement of VK Jain and held that as per prosecution, no statement under Section 161 of CrPC was recorded on 21.02.2018 and therefore, the same could not be supplied.

A Revision Petition was accordingly filed before the Trial Court, but the same was disposed of stating that as it was a record of oral examination by the IO and was noted in the case diary, it could not constitute a statement under Section 161 and therefore, could not be given to the accused. However, it could be used during the trail as an aid by the Court.

Further, as the Revisionists could not show any provision of law entitling them to their own statements during interrogation, this prayer was also declined, with the liberty to call for the recordings during the trial if the same was deemed necessary for production by the Trial Court.

Justice Kait heard the arguments and considered the question as to whether the statement of VK Jain recorded on 21st February, 2018, amounted to a statement recorded under Section 161 of the Code.

The Court noted that it was not in dispute that VK Jain had been called on 21.02.2018 and was examined by the IO which was then recorded in the case diary. It was also noted that the Case Diary itself stated that the witness had been examined in depth and that a report had been prepared.

Justice Kait then refers to Section 161 of the Code and the case of Ashutosh Verma v. CBI (2014) to observe that even at the stage of scrutiny of documents under Section 207, the Court shall supply all the documents to the accused, even if the same is not relied upon by the Prosecution.

"Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused".

The Court then goes on to agree with the submissions of senior advocate for the petitioners before it that it is the bounden duty of the police officer to forward all the statements to the Magistrate, without any exception so as to enable the Magistrate to discharge his duty under Section 207 of the Code by furnishing copies of such documents to the accused.

"It cannot be disputed that the duty of the investigating agency is to do free and fair investigation by bringing to the notice of the Court all the evidences collected during the investigation without pick and choose the one which does not support them".

Therefore, noting that if the statement was not taken into consideration at the time of passing the order on charge which was a part of the police record, it could then not be relied upon during the trial and the accused would not be able to benefit from the same.

The judgment concludes with an observation on the issue of source of document and states that if the evidence is relevant, it is admissible irrespective of how it is obtained.

Finding merits in the present plea, the Court set aside the impugned order of the Trial Court.

"Consequently, the Trial Court is directed to consider the statement dated 21.02.2018 of VK Jain, which is part of 'Case Diary' and placed on record by the accused, at the time of passing the order on Charge".

"It Might Be A Political Hot Potato, But Legally Nothing": Supreme Court Dismisses Delhi Police's Plea In Chief Secy. Assault Case

Mehal Jain

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