Delhi Riots Cases To Be Considered With Sensitivity That Doesn't Mean Common Sense Should Be Given Go-By: Delhi Court

A Delhi Court on Tuesday observed that while it is conscious of the fact that communal riots cases have to be considered with utmost sensitivity, however, the same does not mean that common sense should be given a complete go by. It also added that mind has to be applied at the stage of framing of charges with regards to the material available on record.

The observation came while Additional Sessions Judge Vinod Yadav discharged 22-year-old Javed under sec. 436 IPC (mischief by fire or explosive substance with intent to destroy house etc) after taking note of the fact that there was not a single word in the statements of complainants showing that the riotous mob had committed mischief by fire during the riots.

FIR 102/2020 PS DayalPur was registered under sec. 147, 148, 149, 427, 436, 380, 454, 120­B and 34 of IPC on the written complaint made by a lady alleging that her shop was looted. Three other complaints were filed on similar allegations of the mob looting houses/shops and causing vandalism during riots.

While the Court discharged Javed under sec. 436 IPC, the Court directed the Chief Metropolitan Magistrate to try other offences in the FIR as the same were triable by the Magistrate.

"In view of the aforesaid discussion, 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," the Court said.

The Court took note of the fact that the complainant had not stated a single word regarding committing mischief by fire or explosive substance by the riotous mob in her shop. It was also noted that even from other complaints, ingredients of Section 436 IPC were not made out.

Analyzing the statement made by one of the complainants, the Court observed that the said complainant in his statement recorded under Section 161 Cr.P.C stated that after looting his house, the mob set it on fire.

"…but it is a matter of record that he did not say a word about setting his house on fire by the riotous mob in his initial written complaint made to the police, based upon which case FIR in the matter was registered. It is only when his statement under Section 161 Cr.P.C was recorded by the IO on 06.03.2020 that ingredients of Section 436 IPC for the first time came into fore and same were accordingly invoked in the chargesheet," the Court observed.

It added:

"I'm afraid that the investigating agency cannot cover up the said flaw by way of recording the supplementary statements of complainants, if the ingredient(s) of section 436 IPC was not there in their initial written complaints made to the police."

"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."

The Court 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 8.

In a similar development, the same judge had last week questioned the conduct of Delhi Police in framing charge under sec. 436 of IPC against one Gulfam after remaking that it was beyond comprehension as to how the agency had imported statements of witnesses from a different FIR into the one in question.

The Court discharged him under sec. 436 IPC after taking note of the fact that there was not a single word in the statements of witnesses or the complainant showing that the riotous mob had committed mischief in Shiv Mandir during the riots.

Title: State v. Javed

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