August 13, 2018 12:58:28 am
“Allegations not substantiated for want of sufficient evidence”; “embellishment and exaggeration” in the chargesheet; a “belated, lethargic and lackadaisical” investigation; filing chargesheet “beyond period of limitation” — these are some of the observations made by the fast track court of Additional Chief Metropolitan Magistrate (ACMM) Samar Vishal in the last five months, as it discharged or acquitted AAP MLAs in 19 of 22 cases filed against them by the Delhi Police.
Two courts were set up in the first week of March, after the Supreme Court said cases involving sitting MPs and MLAs must be fast-tracked. The court of the Additional Sessions Judge, which was simultaneously set up to hear cases where punishment involved more than seven years of imprisonment, disposed of one case against an AAP MLA, where the CBI eventually filed a closure report citing lack of evidence.
According to court documents examined by The Indian Express, while these 22 cases were registered by security agencies, AAP MLAs also faced court complaints filed by individuals, such as criminal defamation. None of those has led to a conviction so far.
A senior police officer said they will analyse the orders and see if they need to file an appeal. Lawyers Mohammad Irshad and Rishikesh Yadav represented AAP. An analysis of the judgments indicate why an overwhelming majority of the cases ended in discharge and acquittal — from delays in filing the chargesheet to allegations that could not be proven in court. The cases include:
State vs Manish Sisodia, Mukesh Hudda, Kumar Vishwas
Prosecuted for allegedly committing an offence under Section 3 of the Delhi Prevention of Defacement of Property Act. The Delhi Police had, on October 6, 2013, registered an FIR against them, alleging that AAP had taken political mileage by pasting posters on the wall of a government school, thereby defacing it. The chargesheet was filed on March 30, 2015 — beyond the period of limitation — which means that a chargesheet has to be filed within the time prescribed under sections 467 to 473 of CrPC.
The court said the grounds mentioned by the IO for the delay were vague and showed negligence in filing the chargesheet. The court said it was not a fit case to “condone the delay” in filing the chargesheet, and discharged all accused on April 24 this year.
State vs AAP MLA Naresh Balyan and his associate
Prosecuted for possessing illicit liquor, with the Crime Branch alleging that Sanjay Verma was a close associate of Naresh Balyan and worked as a conduit to stock illicit liquor and distribute it.
The case was registered on January 30, 2015, and the chargesheet was filed under the Delhi Excise Act.
The court framed charges against Verma, stating that there was prima facie evidence against him. However, on April 9, the court discharged Balyan and said police filed the chargesheet against him on the basis of “presumption”, as there was no evidence to connect the illicit liquor in the godown to him. The court said the charge seemed “groundless”.
State vs AAP MLA Gulab Singh and others
It was alleged that on March 24, 2014, the MLA and his supporters created a ruckus by “provoking” a mob in Dwarka with the body of a man who was murdered. The MLA and others were demanding that police bring the perpetrators to the spot. Singh was booked under IPC sections 153 (wantonly giving provocation with intent to cause riot), 188 (disobedience to order duly promulgated by public servant) and other sections.
The chargesheet was filed on February 9, 2016. But the court said there is no allegation that the accused had given any statement to incite any class conflict or hatred or enmity among different classes, and rejected this allegation on merits. The court also noted that the chargesheet was filed beyond the period of limitation, and discharged all accused on April 21.
CBI vs Asim Ahmed Khan
The CBI registered a case against Khan, the former food and supplies minister, on October 21, 2015. The agency alleged he had demanded a Rs 8 lakh bribe from a construction contractor, and had received Rs 5.5 lakh.
The prosecution later filed a closure report, stating that the contractor, during questioning, denied any payment of bribe and involvement in construction work at the specific property location. “It is clear that the allegations of the FIR could not be substantiated for want of sufficient evidence and the present closure report is accepted,” Special Judge Arvind Kumar said on April 28.
State vs Manoj Kumar and others
Police registered seven separate FIRs in August 2015 on the complaint of various salesmen at fair price shops, under the jurisdiction of Kalyanpuri police station. They alleged that a man, who introduced himself as a PA of MLA Manoj Kumar, had demanded Rs 2,000 per month and that refusal would result in sealing of the shops.
On April 3, the court discharged Kumar in all seven cases for want of evidence. According to the court, the only evidence against him was the confessional statement of co-accused Deepak Sharma, which is not evidence as per the Indian Evidence Act. His PA faced trial, but was later acquitted in some of the cases as the complainants could not identify him in court citing “lapse of time”.
State vs Surender Singh
The AAP MLA was prosecuted for allegedly obstructing a public servant from discharging his duties and assaulting him. The complaint was filed on July 7, 2015, by a tehsildar, alleging that on September 23, 2014, the accused and his supporters came to his office and abused him and his employees. Delhi Police filed a chargesheet on February 25, 2016.
The court said the FIR was registered after an “unexplained and inordinate” delay. It added that the delay results in “embellishment and exaggeration”, which is a “creature of afterthought”. Discharging the accused on April 25, the court said there were procedural lapses as cognizance was wrongly taken.
State vs Raju Dhingan
Police registered an FIR in January 2015 for defacement of public property, alleging that a poster was pasted on the wall of an MCD garbage collection centre with a photo of Dhingan as a contestant. The court said the prosecution had failed to prove who pasted the poster, and had not examined any witness. The court said it cannot be ruled out that it was pasted by the opposing party or contestant. Dhingan was discharged on April 12 as the prosecution was unable to prove the case “beyond reasonable doubt”.
State vs Naresh Balyan
Delhi Police registered an FIR on January 18, 2015, on the complaint of one of the members of the ‘Flying Squad’ which was supervising elections. His job was to monitor the expenditure of a public meeting conducted by AAP and videograph it. However, he learnt that the meeting took place before the scheduled time. Balyan was the organiser and was made an accused under IPC Section 188, which pertains to disobedience of an order duly promulgated by a public servant.
The court said it seemed that the police “casually” filed the chargesheet without observing the legal principles and complying with legal requirement. “The offence alleged is violation of an order of a public servant, but no such order is placed on record along with the chargesheet,” the court said. It added that there were procedural lapses as cognizance of the chargehseet shouldn’t have been taken in the first place. Balyan was discharged on May 9.
State vs Kailash Gahlot
An FIR was registered on January 31, 2015, based on a complaint by an executive magistrate of ‘Flying Squad’, Najafgarh, for commission of offence under IPC sections 188 (disobedience of an order duly promulgated by a public servant) and 171B (bribery during elections). It was alleged that more than 100 AAP workers were served food at an institute in the area, and around 50 were watching AAP’s publicity campaign on TV.
The court said there were no allegations against Gahlot — that he had given “gratification” to any person before the polls. “Eating food by party workers, having flags, posters and banners, etc during election does not amount to any offence or violation of Model Code of Conduct,” the court said. It added that the allegations were groundless and discharged Gahlot on April 3.
State vs Arvind Kejriwal and others
An FIR was registered in 2013 under IPC Section 188, Representation of People Act and Defacement Act. The chargesheet was filed on January 2015 — after a year and 94 days, beyond the period of limitation. Police had booked them for alleged violation of the Model Code of Conduct, after a poster of Kejriwal was found pasted on the walls of two houses.
The court said the IO as well as the prosecution could not explain the delay in filing the chargesheet. “The chargesheet is conspicuously silent on the reasons which can be said to have prevented the police to file the chargesheet within time,” the court said, declining to take cognizance of the chargesheet.
State vs Amanatullah Khan and others
A case was registered in 2010 against Khan for assaulting and obstructing a public servant during a rescue operation of child labourers in Jamia Nagar in 2010. In 2015, Delhi Police added kidnapping charges against Khan, and filed the chargesheet in 2016.
The court said police filed a “well-choreographed” chargesheet and that the investigation has been done in a “belated, lethargic and lackadaisical” manner over a prolonged period of time.
On the merits of the case, the court said that as per the complaint and the statement of the witnesses to police, the rescue team was only obstructed from carrying out the operation, and there was no allegation of “assault”.
The court also noted that since the maximum punishment in all the offences, except kidnapping, is two years, the limitation period for filing the chargesheet becomes three years. In this case, the chargesheet was filed in 2016. The court said the case was barred by the “law of limitation”. On allegations of kidnapping, the court said it was added belatedly to cover the limitation period. Khan was discharged on May 3.
State vs Bandana Kumari
Two separate FIRs were registered for offence under sections of the Representation of People Act, Delhi Prevention of Defacement of Property Act and the Press and Registration of Books Act for putting up hoardings in Shalimar Bagh in November 2013. The chargesheet was filed in March 2014.
The court said there is no evidence that the accused had got the hoardings printed or published. “In cases like the present one, it is difficult to convict a person unless and until that person is seen affixing the hoarding/banner, or unless there is an eyewitness to such affixation” the court said. Kumari was acquitted in both cases on June 4.
State vs Bandana Kumari, Raju Dhingan, Manoj Kumar and others
An FIR was registered in October 2014 by expelled party leader Vinod Kumar Binny against three AAP MLAs and others for commission of offence under IPC sections 341, 500, 34, which provide punishment for wrongful restraint and defamation. The complainant alleged that AAP leaders, along with other “paid workers”, protested outside his residence; hurled “abusive” and “defamatory” slogans; and “wrongfully restrained” him for a few hours.
The court said it cannot act as a “mouthpiece” of the prosecution, but has to consider “broad possibilities” of the case. The court pulled up the police for registering an FIR in non-cognizable defamation under IPC Section 500. The judge also questioned the cognizance taken by another court as the chargesheet was filed after “two years, 11 months and 25 days beyond the limitation period”. All three were discharged on May.
State vs Devinder Sehrawat
He was prosecuted on the complaint of head constable Ram Avtar from Palam police station, filed in October 2013, for violation of provisions of Section 127-A of the Representation of People Act, 1951. The chargesheet was filed in March, 2014. The court said the pamphlets were of the accused, Sehrawat, with his photographs, his party symbol and for the promotion of his election. “He was found in possession of these pamphlets, canvassing for his election and, therefore, the only natural presumption will be that the pamphlets were printed/published by him and no other,” the court said. He was convicted.
State vs Sahi Ram Pehalwan
Delhi Police had registered a case against Sahi Ram for voluntarily causing hurt and wrongful restraint in September 2016. It was alleged that the MLA had threatened an MCD supervisor and asked him to stop construction of a road in Okhla Industrial Area. The MLA was also accused of assaulting the nephew of a local resident. The court convicted the accused, stating that the “offences were proved” against him.
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