A Delhi court Tuesday discharged AAP MLAs Manoj Kumar, Raju Dhingan, Bandana Kumari and other members of the charges of wrongful restraint and defamation on a complaint lodged by expelled party leader Vinod Kumar Binny. Stating that it was “improper” to take cognizance of a chargesheet filed under IPC Section 500 (defamation) without examining the complainant first, Additional Chief Metropolitan Magistrate (ACMM) Samar Vishal pulled up a metropolitan magistrate and the Delhi Police.
The incident dates back to September 21, 2014. Binny had 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.
A month later, police registered an FIR under IPC sections 341 (wrongful restraint) and 500 (defamation) against the leaders.
According to AAP lawyer Mohammad Irhsad, a court had taken cognizance of the offences last year.
Judge Vishal said the court cannot act as a “mouthpiece” of the prosecution, but has to consider the “broad possibilities” of the case — the total effect of the documents produced before the court, any basic infirmities appearing in the case and so on.
He also questioned the validity of registering an FIR on the offence of defamation and the court taking cognizance of the same. “In the present case,
cognizance of the offence of defamation was taken on the basis of the chargesheet…. this was improper and not in accordance with statutory provisions — Section 199 CrPC. There is no complaint of the complainant on which the court could have taken cognizance of commission of offence of defamation. The only complaint is one written to the SHO, but this cannot be considered as a complaint made to the court valid under Section 199 of CrPC,” the court said.
It added that police had registered the FIR under IPC Section 500 with the aid of Section CrPC 155(4) — when a case relates to two or more offences of which at least one is cognizable, it shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
The ACMM said, “But the offence of defamation is an exception, even to section 155(4) CrPC. An FIR cannot be registered for defamation along with a cognizable offence…Therefore, the FIR registered in this case as far as it relates to the offences of defamation… and the cognizance taken by this court was not valid.”
Regarding the offence of wrongful restraint, the court said that the punishment may extend to one month and the limitation period for filing of chargesheet shall be one year.
The chargesheet, however, was filed after “two years eleven months and 25 days”. The court also said the IO has conducted the investigation in a very “casual” manner, and that there was no probe to prove that the accused were present at the site.
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