'No Due Application Of Mind': Court Discharges Tahir Hussain & Others From Graver Offence In Delhi Riots Case

A Delhi Court on Wednesday discharged former Aam Aadmi Party Councillor Tahir Hussain and nine others from the charge of 'causing mischief by fire or explosive substance with intent to destroy a building', in a case of 2020 North-East Delhi riots.

Additional Sessions Judge Pulastya Pramachala however remanded the case back to the Chief Metropolitan Magistrate (CMM) for trial of other offences under Section 147, 148, 149, 427, 120B of IPC and Section 3 and 4 of Prevention of Damage to Public Property Act.

The ASJ said that the complaint made by one Jai Bhagwan as well as his statement, by no stretch of imagination, showed commission of the offence under Section 436 of IPC.

"It is well apparent that this Section was added in this case without due application of mind. Hence, all the accused persons are discharged for offence under Section 436 IPC," the court ordered.

Tahir Hussain, Mohd. Shadab, Shah Alam, Riyasat Ali, Gulfam, Rashid, Mohd. Rihan, Mohd. Abid, Arshad Qayyum and Irshad Ahmed have been discharged under Section 436 of IPC. Hussain is facing multiple cases in connection with the riots.

Section 436 of the Code provides for sentencing of anyone who commits mischief by fire or any explosive substance, with an intent to cause destruction of any build­ing used as a place of worship or as a human dwelling or as a place for the custody of property.

The offence is punishable with life imprisonment or with imprisonment of a term which may extend to ten years and with fine.

The FIR 80/2020 was registered at Dayalpur police station after a PCR call was received on February 25, 2020 alleging that about 100 people were standing on the terrace of Tahir Hussain's house carrying petrol bombs and were throwing the same on those belonging to the Hindu community.

It was also alleged that various houses, shops and public properties were damaged and burnt by the rioters.

While the judge was considering the case on the point of framing of charges under Section 436 of IPC, the special public prosecutor (SPP) was requested to point out the material and allegation supporting the said offence.

However, after perusing the main charge sheet as well as the first supplementary chargesheet filed by the police, the court observed that except for general information regarding the incidents that took place during the riots, "one cannot get any idea as to for what particular incident this particular case was registered and chargesheet was filed".

The judge noted that it is only from the second chargesheet that SPP pointed to the statement and complaint made by Jai Bhagwan. The court also observed that the complaint has "several cuttings and corrections" in the endorsement, 

The complainant in March 2020 had alleged that due to the riots, he suffered a loss of furniture worth Rs.35,000 that was purchased by him for his daughter's marriage.

Thereafter, his statement was recorded on September 15 in 2021 wherein he mentioned name of various accused persons, alleging that that they were throwing stones and petrol bombs.

"However, the focus of allegations remained that he was bringing furnitures as well as other electronic items for the purpose of marriage of his daughter from Hapur, U.P on a loading vehicle, which was intercepted and stopped near Chand Bagh Pulia, on Karawal Nagar Road, by the mob. Thereafter, all the articles kept in that vehicle were thrown on the road," noted the court. 

Accordingly, the court observed:

"In response to a specific query of the court, ld. Special PP submitted that apart from this statement, there is no other statement of this complaint/witness. The above mentioned complaint as well as the statement of Sh. Jai Bhagwan, by no stretch of imagination shows commission of offence under Section 436 IPC."