Investigating Agency Cannot Introduce Altogether A New Case By Recording Supplementary Statement Of Complainant: Delhi Court Observes In Riots Case

A Delhi Court has observed that the investigating agency cannot introduce altogether a new case simply by recording a supplementary statement of one of the complainants pertaining to an offence, if there was no mention about the same in initial written complaints made to the police.

Additional Sessions Judge Vinod Yadav made the observation while discharging a 30 year old man, Sandeep Kumar, of an offence under Section 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 introduce all together a new case by recording a supplementary statement of one of the complainants, if the ingredients of Section 436 IPC were not there in his initial two written complaints made to the police," the Court said.

"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," it said.

FIR 80/2020 PS Karawal Nagar was registered under Sections 147, 148, 149, 188, 427, 436, 380 and 454 of IPC on the basis of written complaint made by one Mohd. Zakir alleging that his house was vandalized and looted by a riotous mob during the Delhi riots. Various other complaints of similar nature were received from different complainants in the matter.

After going through 23 complaints in the case, the Court was of the view:

"A fine­tooth-comb analysis of the said complaints reveals that there are no allegations of arson in any of them and as such, ingredients of Section 436 IPC are not at all made out therefrom. Even from the photographs filed on record, no incident of committing mischief by fire or explosive substance is borne out."

The Court also perused the Section 161 CrPC statement of the complainant Mohd. Zakir wherein he stated that he found traces of smoke on inspecting his house.

However, the Court also took note of the fact that he had not stated a single word regarding committing of arson in his house by the riotous mob on February 25, 2020 and all of a sudden, during the course of recording of his statement under Section 161 Cr.P.C by the IO in May, 2020, he stated about "traces of smoke" having been found inside his house.

"Thus, it is only when his statement under Section 161 Cr.P.C was recorded by the IO on 01.05.2020 that ingredients of Section 436 IPC for the first time came into fore and same were accordingly invoked in the chargesheet," the Court said.

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.

Case Title: State v. Sandeep Kumar

Click Here To Read Order