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Investigating agency can’t pick and choose evidence, says High Court in ex-chief secretary ‘assault’ case

CM Kejriwal, Deputy Chief Minister Manish Sisodia and 11 AAP MLAs are accused in the case of an alleged assault on Anshu Prakash at the CM’s residence in February 2018, when the then Chief Secretary was called there for a meeting.

Written by Sofi Ahsan | New Delhi | October 22, 2020 2:20:22 am
Anshu Prakash

Observing that it is the duty of the investigating agency to bring to court all evidence collected during investigation without pick and choose, the Delhi High Court Wednesday directed the trial court to consider an initial statement of CM Arvind Kejriwal’s former adviser V K Jain in the case of alleged assault on former Chief Secretary Anshu Prakash.

The order was passed in a petition filed by Kejriwal challenging the decision of the lower court to not allow an application for supply of “some crucial documents”, which were not made part of the chargesheet by the prosecution. Delhi Police had submitted that no such statement of Jain was recorded under Section 161 CrPC on February 21 in 2018. Before the HC, Kejriwal’s counsel argued that the statement, which is referred to in the case diary, was withheld as it did not suit the prosecution case.

“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. The investigating agency has no power to appreciate the evidence, it rests with the court,” Justice Suresh Kumar Kait said in the order, while quashing the order passed by the lower court.

The single judge bench said, “The trial court is directed to consider statement dated 21.02.2018 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.”

Kejriwal, Deputy Chief Minister Manish Sisodia and 11 AAP MLAs are accused in the case of an alleged assault on Prakash at the CM’s residence in February 2018, when the then Chief Secretary was called there for a meeting.

Jain, a witness in the case, in his February 21 statement, had denied witnessing the alleged assault but reportedly said otherwise in later statements, while providing an account of the alleged incident to the police. AAP had alleged that Jain was pressured by Delhi Police to change his statement.

Senior Advocate N Hariharan, who represented Kejriwal, had earlier informed the court that three statements of Jain have been included in the chargesheet — two under Sections 161 and 164 CrPC are dated February 22, 2018, and one under Section 161 CrPC dated May 9, 2018. The statement dated May 9 begins with “in continuation with the statement dated 21.02.2018” but it has been concealed, the court was told.

Delhi Police, in a status report, had told the court that Jain was called to the police station on February 21 and examined by the investigating officer but his statement was not recorded on that date under Section 161 CrPC, but on February 22 and May 9. While referring to the record which mentions existence of a February 21 statement, police said the date was a typographical error.

In the ruling, Justice Kait said it is the duty of the police officer to forward all statements to the Magistrate without any exception “so as to enable the Magistrate to discharge his duty under Section 207 by furnishing copies of such documents to the accused”.

“Whereas, the prosecution has completely denied that no statement was recorded on 21.02.2018 and only the oral statement is made by V K Jain. However, admittedly, in ‘case diary’, it is mentioned that he is giving statement in continuation of statement given on 21.02.2018. Thus, the stand of prosecution cannot be accepted which is contrary to their own record,” the order reads.

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