Police officials themselves confused about arson charge, not proper way to conduct case: Court hearing riots case

New Delhi: A Delhi court was yet again irked by the Delhi Police's and its prosecutors' conduct in cases related to the north-east Delhi riots last year, pulling up the police force for first insisting that IPC 436 (mischief by fire or explosive substance with intent to destroy property) is made out in a case and then later filing an application to transfer the case to a Metropolitan Magistrate — claiming the charge is not made out.

The court, irked, at the lack of coordination between the Delhi Police and its prosecutors, ordered for a copy of this order to be sent to the Special Commissioner of Police Division - I (Law and Order) so that better coordination can exist between the investigating officers and the prosecuting lawyers.

Additional Sessions Judge Amitabh Rawat, during the hearing on Tuesday, said, "This application was filed by you only right? Is this a joke? Is police custody a joke? You yourself don't know what to do. When is sec. 436 IPC invoked? Does this FIR contain ingredients of sec. 436?", according to legal news website LiveLaw.

Significantly, the FIR in the case has been filed under 436 of the IPC along with 427, 147, 148, and 149 of the Indian Penal Code.

ASJ Rawat was hearing an application from the police to transfer the case to another court — pleading that Section 436 of the IPC is not made out in this matter.

Moreover, when the police were directed to fetch the Special Public Prosecutor in the case, the concerned SHO and a couple of police officers told the court that the SPP was not available for the day. The court then proceeded to ask the police how it was filing a plea to transfer the case when it had opposed bail under this same charge.

When the police suggested that they wished to now withdraw the application, the court said, "You opposed the bail application. You filed the Chargesheet. First of all, all three of you officers decide what to do. Your stand is changed in an hour. Your understanding is changed suddenly."

Significantly, the police had filed a chargesheet including under 436 IPC, which is

the only non-bailable charge there. If the charge is, in fact, meritless, the accused should not have been sent to custody, the court noted.

The court went on to record that the police had first filed the application to transfer the case as the arson charge is not made out but later spoke to the SPP and changed its stand, wanting to withdraw the plea. In the order, the court noted, "This is not the proper way of conducting the case".