[Delhi Riots] Court says common sense can't be given a 'go-by', discharges man of graver offence

Holding that the charge cannot be invoked “merely on the statement” of a police witness, a Delhi court has discharged a 22-year-old student from the charge of using an “explosive substance to destroy house” in a case connected to the Delhi Riots of February 2020. .Additional Sessions Judge Vinod Yadav, however, framed rioting and other charges against the accused, Javed, which carry lesser punishments and which are triable by a Magisterial Court.."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 go-by; mind has to be applied even at this stage with regard to the material available on record," the Court said..On “fine tooth-comb analysis” of the written complaints, the Court found the ingredients of Section 436 (mischief by fire or explosive substance with intent to destroy house, etc) of the Indian Penal Code (IPC) to be absent..The order also highlighted that Section 436, IPC could not be invoked only on the basis of a statement dated March 6, 2020, by a police witness, namely constable Ashok, who was posted as a "beat constable" in the area in question on the date of the alleged incident. .“When the four complainants/victims had stated nothing in this regard in their written complaints, then the statement of said police witness has no significance to this effect. There is also a considerable delay in recording of his statement by the IO,” the court noted. .The defence counsel had sought Javed's discharge, arguing that the four complainants in the case had not specifically named or identified the accused in their written complaints. .The court recorded the defence submission that,“They even did not specifically name/identify him (accused) vide their statements recorded under Section 161 CrPC in the matter. No recovery of any sort has been effected from the accused.".It was also highlighted that out of the alleged riotous mob of 150-200 persons, only the accused was chargesheeted in this matter and that the investigating agency had not identified or apprehended any other accused person in the case. This was surprising and suggested his false implication, the Court was told. .On the other hand, the prosecutor stated that the accused was arrested from his house on April 19, 2020, pursuant to secret information and his categorical identification by the police witness..Seeking to explain the delay in registering the FIR, the prosecutor contended that the communal riots in northeast Delhi were “unprecedented” and that the police personnel were busy in maintaining law and order, rescuing victims and stopping further damage to the life, limb and property..Javed had been accused of being an “active member of the riotous mob” and of having actively participated in rioting, vandalising and arson during the Delhi Riots. .The court, however, pointed out that there was no eye-witness of the alleged acts and no related CCTV footage or a videoclip was available on record. .“There is no photograph showing arson having been committed in the matter,” the court said. .“It is also relevant to note here that till date the investigating agency has not been able to apprehend/arrest any other accused person in the matter, meaning thereby that no progress/further investigation in the case has so far been made and the investigating agency is still standing on the same square which it did when the accused was enlarged on bail..,” the court underlined..The court went on to observe that cases of communal riots had to be considered with “utmost sensitivity”..The Judge, ultimately, concluded, “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 exclusively triable by the court of learned Magistrate.”.Javed had been chargesheeted under Sections147 (rioting), 148 (rioting armed with deadly weapon), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object), 427 (mischief causing damage to the amount of fifty rupees), 436, 380 (theft in dwelling house, etc.), 454 (lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment) and 120B (criminal conspiracy) read with Section 34 (common intention) of the IPC..Having framed charges other than Section 436, IPC, the Judge has placed the case before the concerned Chief Metropolitan Magistrate. .Advocate Nasir Ali appeared for the accused whereas Special Public Prosecutor Amit Prasad represented the State..[Read Order]