New Delhi (ILNS): The Delhi High Court today set aside an impugned order and directed the trial court to consider the statement of a witness while framing charges in connection with the case related to the alleged assault on former Delhi Chief Secretary Anshu Prakash.
The Court held:
“It is the prime duty of the Investigating Agency to do free and fair investigation, thereafter, bring to the notice of the Court all the evidences collected without pick and choose.”
Justice Suresh Kumar Kait made the above observation in a petition filed by Delhi Chief Minister Arvind Kejriwal, seeking a copy of the statement of a witness along with the audio video recording of the examination of petitioners.
The case pertains to the alleged assault of the then Chief Secretary Anshu Prakash in 2018, during a meeting at Kejriwal’s official residence. Prakash is now the Additional Secretary in the Department of Telecom. On October 25, 2018, Kejriwal, Manish Sisodia and nine other AAP MLAs were granted bail by the trial court in the assault case. The alleged assault had triggered a bitter scuffle between the Delhi government and its bureaucrats.
An application was filed by the Delhi CM under section 207 Criminal Procedure Code (Cr.PC) for supply of certain deficient documents including the copy of the statement of witness V.K. Jain, recorded on February 21, 2018 and audio/video recording of the examination of the petitioners. Barring the supply of legible copy of the documents mentioned in the application the ACMM declined the supply of the statement dated February 21, 2020 of V.K Jain and held that as per prosecution no statement under section 161 Cr.P.C. was recorded of V.K. Jain on February 21, 2020 and therefore the same cannot be supplied.
Thereafter, a revised petition was filed before the ASJ which was disposed of where the Court said that:
“Since it is a record of oral examination of Sh. V. K. Jain by the IO and is noted in the case diary, this report does not take the place of statement under Section 161 Cr.PC and is therefore, not to be given to the accused.”
A petition was also filed before the Delhi High Court where the main issue to be considered by the Court was that, whether statement of witness V.K. Jain recorded on February 21, 2018 but not signed by the IO of the case, is to be considered as a statement recorded under section 161 Cr.P.C. If yes, further question arises about the judgments.
The bench observed that:
“A conjoint reading of section 173(5), 173(6) and first proviso attached to section 207 of Cr.P.C. leaves no scope of doubt that it is the bounden duty of the police officer to forward all the statements to the Magistrate, mentioned in sub-section (5) (b) of Section 173 Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under section 207 of Cr.P.C. by furnishing copies of such documents to the accused.”
Moreover, since the statement was not oral but written one and has been mentioned in various other documents and orders, it acquires the status of section 161 Cr.P.C, observed the bench.
The bench further observed that:
“It cannot be disputed that the duty of the investigating agency is to do free and fair investigation by bringing to the notice of the Court all the evidences collected during the investigation without pick and choose the one which does not support them. The accused has been provided with definite right under the provisions of Cr.P.C. and the constitutional mandate to face the charge against him by a fair investigation and trial.”
The bench thus set aside the impugned order and directed the trial court to consider statement of V.K. Jain, which is part of ‘Case Diary’ and placed on record by the accused, at the time of passing the order on Charge.
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Read the judgment here;
SKT21102020CRLMM18672020-104632-1