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New Delhi: A Delhi court on September 2, while hearing the case of the alleged involvement of one Gulfam during last year’s North-East Delhi communal violence, pulled up the police for importing statements from a different FIR while filing charges against the accused, LiveLaw reported.
On May 8, 2020, Gulfam was arrested on the basis of his disclosure statement made while hearing cases on charges filed with respect to FIR 86/2020. However, Gulfam was arrested and charges were levied against him under FIR 90/2020. These charges were filed under Section 436 of the Indian Penal Code (IPC), which deals with ‘mischief by fire or explosive substance with intent to destroy house’, among others.
Additional sessions judge (ASJ) Vinod Yadav thus remarked that it was “beyond comprehension” that the prosecuting authority had taken witness statements recorded under FIR 86/2020 and applied them to the case being heard (pursuant to FIR 90/2020).
Representing the accused, advocate Anis Mohammed submitted to the court that the importing of statements from a different FIR by the police was violative of Gulfam’s rights under Article 20 (2) of the Indian constitution, which contains the rule against “double jeopardy” (no person shall be prosecuted or punished for the same offence more than once).
The court went on to note that, even if this violation is put aside and the witness statements are considered “at face value”, there are no ingredients of IPC Section 436 present in the case.
As such, ASJ Yadav discharged Gulfam under Section 436. However, he upheld that the remaining charges levied under IPC Sections 147, 148, 149 and 120 (b) may be tried by the Chief Metropolitan Magistrate (CMM). These sections deal with the punishment for rioting, rioting with a deadly weapon, unlawful assembly and criminal conspiracy respectively.
Mohammed, however, also argued that Gulfam was arrested solely on the basis of his own disclosure statement pursuant to FIR 86/2020 and that no other evidence of his involvement in the riotous mob existed, the Indian Express reported.
The prosecution, on the other hand, defended the actions of the police while framing the charges included in FIR 90/2020, stating that the areas where both incidents took place (pertaining to each FIR) were quite close to each other and that the same unlawful assembly had been operating in both areas.
While hearing this case, ASJ Yadav also reprimanded the investigating agency for having made no progress with respect to cases pertaining to the riots in the national capital in February, 2020. He noted that no further arrests have been made and that the investigating agency is “still standing on the same square” as it was in October of last year. ASJ Yadav’s remarks adds to a spate of recent criticism levied against the Delhi police for the manner in which they have dealt with Delhi riots cases.
The court concluded by directing the CMM to either try the matter himself or assign it to another competent court or metropolitan magistrate. It also directed the accused to appear before the CMM on September 10.