Common sense shouldn't be given a go-by, says court
New Delhi: Observing that while the cases related to last year's communal riots "have to be considered with utmost sensitivity", it does not imply that "common sense should be given a complete go by", a Delhi court has dropped a charge off a 22-year-old accused in a case related to rioting.
The observation was made by the court of Additional Sessions Judge Vinod Yadav while discharging one Javed under Section 436 of IPC which pertains to mischief by fire or explosive substance with intent to destroy house, etc., after he noted that there wasn't a single word in the statements of the complainants in the case which showed that the riotous mob had committed mischief by fire during the communal violence.
Hence, while discharging the 22-year-old under the section, the court gave directions to the Chief Metropolitan Magistrate (CMM) to try the other offences that the accused has been charged under. "...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 order read.
The FIR in the case was registered at the Dayalpur Police Station on the complaint of a woman who alleged that her shop was looted and vandalised. Along with her complaint, three other complaints, which pertained to the same allegations involving alleged looting and burning of properties, were clubbed into the same FIR.
While observing that the complainant had not stated a single word regarding committing mischief by fire or explosive substance by the riotous mob in her shop, ASJ Yadav said: "...he(complainant) 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 CrPC(before police) was recorded by the IO...that ingredients of Section 436 IPC for the first time came into fore and same were accordingly invoked in the chargesheet". Even in the other complaints, the court noted that the said section cannot be made out.
ASJ Yadav went on to add that the "investigating agency cannot cover up the said flaw" through recording supplementary statements of complainants, if the ingredients of Section 436 IPC were not there in the original police complaint. "...cases of communal riots have to be considered with utmost sensitivity, but that does not mean that the common sense should be given a go-by; mind has to be applied at this stage with regard to the material available on record," the court noted while directing the CMMs court to try the accused for other offences.
