Chief Secy assault case: HC sets aside trial court order; says cops cannot 'pick and choose' evidence

new delhi: The Delhi High Court on Wednesday set aside a sessions court order rejecting the plea of Chief Minister Arvind Kejriwal and Deputy CM Manish Sisodia to provide the statement of one of the witnesses in the case related to the alleged assault of the erstwhile chief secretary Anshu Prakash in 2018.

Police cannot pick and choose what evidence will be placed on record, the court said.

Justice Suresh K Kait directed the trial court to consider the statement in question of February 21, 2018, at the time of passing the order on the charge.

The high court also said that it was the "prime duty" of the investigating agency to conduct a free and fair probe and thereafter, bring to the notice of the trial court all the evidence collected "without pick and choose".

"The investigating agency has no power to appreciate the evidence, it rests with the court. Consequently, the impugned order (of July 24, 2019) is hereby set aside. Consequently, the trial court is directed to consider the statement dated February 21, 2018 of V K Jain (witness), which is part of 'case diary' and placed on record by the accused, at the time of passing the order on charge," Justice Kait said in his order.

Kejriwal and Sisodia, in their plea, moved through advocate Mohd. Irsad, had alleged that the prosecution withheld Jain's statement recorded on February 21, 2018 as it did not suit the prosecution's case and helped in falsely implicating the petitioners. They had contended that a copy of the statement ought to have been supplied to them.

The state government, represented by the Delhi government standing counsel (criminal) Rahul Mehra, had in its status report contended that Jain was called to the police station on February 21, 2018 and he was examined on that day, but no statement under section 161 Criminal Procedure Code (CrPC) was recorded.

It further argued that under the CrPC, "what is to be supplied to an accused are the specified documents and no more. It is what the prosecution proposes to rely upon what can be supplied and the accused cannot seek supply of a document which they have produced and which the prosecution does not choose to rely upon."

The high court did not agree with the contentions, saying the sessions court in its order July 24, 2019, has recorded that on perusal of case diary it shows that Jain was examined in the police station on February 21, 2018, in-depth and a report was prepared.