'Serious Lacunas In Delhi Police Investigation': Court Acquits Former AAP Minister, 37 Others In FIR Registered Over 2020 Fuel Price Hike Protest

A Delhi Court has acquitted former Delhi minister Rajendra Pal Gautam, Aam Aadmi Party MLA Durgesh Pathak and 36 others in a criminal case registered against them in connection with a protest held by the party in July 2020 against the rising prices of petrol and diesel.

The police had booked the AAP leaders and the party workers under Section 188/34 IPC for holding the protest despite being allegedly told that a gathering was not allowed on account of the spread of COVID-19 pandemic. Delhi Police accused the protestors of violating the orders issued under Section 144 CrPC which prohibited such gatherings.

Additional Chief Metropolitan Magistrate Vaibhav Mehta in the ruling said the prosecution failed to place on record any evidence to prove that the prohibition order was communicated to the gathering. The court also said no video or photographs were placed on record to prove the assertion.

"The prosecution has not placed on record anything to show that public address system was used by the police to give any warning to the public or to show that the persons who had gathered were apprised about the imposition of Section 144 Cr.PC and in what mode and manner this was communicated. Videography would have not only shown that large number of crowd had gathered at the spot and helped ascertain their identity, but also would have shown that they were apprised properly about the imposition of Section 144 Cr.PC. Also the police officials failed to comply with the Standing Order 309 of the Delhi Police which enjoins that there should be a display banner indicating Section 144 Cr.PC. No photographs/ videography has been placed on record by the prosecution in this regard."

The court said it is only after the gathering fails to respond to the communication of the prohibition order, it can be termed as "unlawful", while reiterating that there is no substantial evidence to show that the order was duly communicated.

ACMM Mehta further noted that SI Yoginder Kumar, who was the first IO of the case, has admitted that he did not mention the bus number in which the accused were taken to Rajinder Nagar police station from the spot and that he did not make the driver of the bus a witness in the charge-sheet.

"Also PW2 has admitted that he did not make any DD entry of his arrival in PS Rajinder Nagar. Also the prosecution has not mentioned any police staff of PS Rajinder Nagar in the list of witnesses to support their case and to show that the accused persons were brought to and detained at PS Rajinder Nagar. This fact further weakens the case of the prosecution as it casts doubts on the version of the prosecution that the accused persons were detained and taken by bus to PS Rajinder Nagar," the court added.

Pointing to the inconsistencies in depositions of prosecution witnesses, the court said while Kumar claimed that HC Amit had noted down the names and mobile numbers of protestors, Amit in his cross-examination denied the same and said many of the protestors were wearing masks.

"Also PW-2 SI Yoginder Kumar in his cross-examination has stated that the SHO and the ACP Kamla Market made announcements on PA System about the imposition of section 144 Cr.P.C in the area, however, neither the SHO PW-4 Kumar Abhishek nor the ACP PW-6 Anil Kumar have stated anything on this point. Infact PW-6 ACP Anil Kumar in his cross examination has stated that he had not given any directions that the order u/s 144 Cr.P.C be communicated to the public via loudspeakers, hoardings/banners. Also PW-1 ASI Vinod Kumar in his cross-examination has stated that PW-2 SI Yoginder Kumar did not come to the PS I.P. Estate in the whole day and only HC Amit had come for registration of the FIR. This fact is inconsistent with the deposition of PW-2 SI Yoginder Kumar that he recorded the statement of HC Amit later on 01/07/2020 at PS I.P. Estate."

The court also noted that out of the 38 accused, eight are women but prosecution failed to mention a single female police official in the list of witnesses to show how the women protestors were detained. "In case there was no female police official present then the prosecution has failed to explain how the female protesters were detained and if so, by whom," it said.

ACMM Mehta added that the "non-mention of any lady police official goes against the case of the prosecution as it shows that there were either no female protesters at the spot who were part of the unlawful gathering or that the detention of the women protesters/accused persons was illegal, flouting the well laid down principles regarding the arrest and detention of women accused persons".

The judge also noted that the accused persons have taken the defence that they were not present at the spot on the day of the incident and in fact they never went to the police station. "The accused persons in their statements u/s 313 Cr.P.C have stated that the IO had come to their house/offices and got signature on some blank documents and they were never detained nor taken to PS Rajinder Nagar," ACMM said in the judgement.

The court said no prohibitory orders were in place on June 30 in 2020 and the said orders were received at Kamla Market police station only the next morning. The court said the notification was issued on the same date on which the gathering took place, and it can reasonably be believed that the protestors were not aware about it.

"The police officials including HC Amit Kumar were not aware of this prohibitory order at the time of the gathering of alleged accused, so the accused persons cannot be expected to have prior knowledge of this prohibitory order issued u/s 144 Cr.P.C at the time of their gathering and the onus was on the prosecution to show that the accused persons were not only present at the spot, gathering in large groups but also were communicated and informed about the Notification No. 6390-6460-ACP/Kamla Market issued by the ACP concerned u/s 144 Cr.P.C," it said.

Observing that the prosecution could have proved it via video recordings or CCTV footage, the court said the police officials "failed to collect in utter non compliance of the directions given by the DCP (H.Q) in Standing order No. 309 as well as the directions given by the Hon'ble Supreme Court in Ramlila Maidan incident case (2012) 5 SCC-1. PW-2 SI Yoginder Kumar in his cross-examination has admitted that there was no display board or banner at the spot to indicate that section 144 Cr.P.C was imposed in the area."

Ruling that there are inconsistencies in the testimonies of prosecution witnesses and that the police officials did not act in accordance with guidelines framed by their department, the court gave benefit of doubt to all accused persons and acquitted them in view of the fact that the prohibition order was not validly communicated to them.

"After going through the material on record including the testimonies of prosecution witnesses and other material placed on record by the prosecution, this court is of the view that there are material contradiction in the testimonies of the prosecution witnesses and there are serious lacunas in the investigation carried out by the police officials ignoring well laid down principles and legal precedents and the directions given by their own senior police officials."

Title: State vs Rajender Pal Gautam & Ors.

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