Delhi High Court on Tuesday set aside the session court’s order rejecting a plea filed by Delhi Chief Minister Arvind Kejriwal and Manish Sisodia in order to provide the statement of one of the witnesses in the assault case of then Chief Secretary Anshu Prakash in 2018. The court has allowed Kejriwal’s plea for witness statement in the matter.
Justice Suresh K Kait directed the session court to consider the statement in question of February 2018 while announcing the order on charge. Justice Kait also stated that it is the prime duty of the investigation agency to conduct a free and fair probe and try to bring to the notice all the evidences collected without pick and choose.
“The investigating agency has no power to appreciate the evidence, it rests with the court. Consequently, the impugned order (of July 24, 2019) is hereby set aside. “Consequently, the trial court is directed to consider the statement dated February 21, 2018 of V K Jain (witness), which is part of ‘case diary’ and placed on record by the accused, at the time of passing the order on charge,” the court said.
Arvind Kejriwal and Manish Sisodia in their petition filed through Mohd. Irsad, alleged that prosecution withheld Jain’s statement recorded on February 21, 2018 which didn’t suit the prosecution case and helped in implicating the petitioners falsely. They contended that one copy of the statement ought to have been supplied to them.
Delhi government standing counsel (criminal) Rahul Mehra representing Delhi government submitted its status report in which he contended that Jain was called to the police station and was examined on February 21, 2018. But the statement was not recorded under section 161 Criminal Procedure Code (CrPC). The statement was only recorded on February 22, 2018 and May 9, 2018.
The state government also contended that under CrPC, “what is to be supplied to an accused are the specified documents and no more. It is what the prosecution proposes to rely upon what can be supplied and the accused cannot seek supply of a document which they have produced and which the prosecution does not choose to rely upon.”
“The case diary further shows that after examination, V K Jain was relieved from the investigation after giving him necessary instructions. Learned Additional Sessions Judge further observed that since it is a record of oral examination of V K Jain by the investigating officer and is noted in the case diary, the said examination does not take place of statement under section 161 Cr.P.C. and is thereby not to be given to the accused. However, the same may be used during the trial,” observed the High Court.
The court further stated that prosecution denies that the statement was recorded on February 21, 2018. While the case diary signifies that the statement was recorded. The court further said that thus, the stand of prosecution cannot be accepted which is contrary to their own record.
Justice Kait further stated, “The aforementioned opinion, in my view, is perverse because of the reason that the statement dated February 21, 2018 is not oral but a written one and said statement has been mentioned in various other documents and orders as discussed above, thus, it acquires the status of section 161 Cr.P.C. Moreover, if the statement dated February 21, 2018 is not taken into consideration at the time of passing the order on charge, which is part of police record, then during trial it cannot be relied upon and the benefit of the same will not be available to the accused person.
