IN THE COURT OF SHIR A. S. JAYACHANDRA, DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI State Vs. [ENTITY] & Ors. SC No. 590/18 FIR No. 119/03 P.S. Farsh Bazar Orders on charge: 1.
The complainant-police station had placed the charge sheet against one [ENTITY] - the accused no. 1 and by keeping all the other accused in column no. 2 of the charge sheet who were not arrested, alleging offences u/[SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT]. Among these offences the offence u/[SECTION] of [ACT] is triable by the court of sessions.
2. The gist of the charge sheet is that on 22.04.2003 at about 5.00 pm one Head Constable [ENTITY] was on duty at Masjid Madarsa, Farsh Bazar. The other constables [ENTITY], [ENTITY] and [ENTITY] were also present. It is complained that around 9.30 pm, a group of 100 - 150 persons shouted slogans that they would not allow madarsa to run there and all the accused persons entered the said madarsa and created mischief by igniting the fire. Certain articles were lying in the madarsa. After litting the fire all of them fled. The head constable [ENTITY] made the complaint and the FIR was registered. A-1 was arrested and rest of the ten persons were kept in column no. 2. The matter is sent up for trial by splitting the case against accused [ENTITY].
3. The matter was heard on the point of charge. The Ld. Addl. PP for the State submits that the statement of HC [ENTITY] makes out all the charges and the accused be tried for the offences.
4. The Ld. Counsel Sh. [ENTITY] appearing for the accused submits that no charges can be framed against the accused since initially the Ld. MM has not taken cognizance for the offences u/[SECTION] of [ACT]. He points out that the Ld. MM by an order dated 02.04.2004 took cognizance of the offences u/[SECTION], [SECTION] and [SECTION] of [ACT] only. Further more he points out to another order passed by the Ld. MM dated 19.09.2017, whereby the accused were discharged for the commission of the offences that were taken cognizance.
5. He also relied on [PRECEDENT], [PRECEDENT] and also [PRECEDENT].
6. The duty of the court while hearing the accused on the point of charge is clearly set-forth under [SECTION] of the [ACT] Upon consideration of the record and the documents submitted if the court considers that there is no sufficient ground for proceeding against the accused, the accused are eligible to be discharged for which the reasons are to be recorded. In the backdrop of the scope of [SECTION] of [ACT], this court is to consider the material and the charge sheet submitted.
7. It is seen from the record that there was no offence triable by the sessions court was taken cognizance by the Ld. M.M. The Ld. M.M. had taken cognizance of the offences u/[SECTION], [SECTION] & [SECTION] of [ACT] only. The Ld. Addl. PP has also gone through the order sheet of the Ld. MM dated 02.04.2004. The said order was not challenged by the State.
8. The order sheet also shows that the Ld. MM after perusal of the record had noted that there is no specific role of any of the accused and no overt act is specified. The charge sheet shows that the arrested accused had confessed to their guilt and the same is inadmissible in evidence. There is none to identify the accused as the very persons having participated in the alleged incident. No public persons were examined. The Ld. M.M. also noted that none of the accused is named by the police witnesses. The above order dated 19.09.2017 was set aside in [CASE NUMBER] dated 22.11.2018. Consequently, the matter is committed.
9. In the backdrop of the submissions made, this Court is to examine whether there is any material to proceed against the accused for the offences complained.
10. In the charge sheet there is a joint complaint made by the police officials which reads as under:
"Complaint u/[SECTION] of [ACT]
Hon'ble Sir, It is humbly submitted that I am working as H.C. in Delhi Police and presently posted at P.S. New Ashok Nagar, Delhi.
That on 22.04.2003 while we were posted at P.S. Farsh Bazar, Delhi and were deployed at Masjid/Madrasa, Dhobiyan Mohalla Sarai, Farsh Bazar, Delhi. A no. of 100/150 persons in a form of mob have attacked above noted Masjid/Madrasa protesting running of a Madrasad at the said Masjid as one of the inmates of said Masjid was arrested on charge of attempt to commit unnatural sex with a calf. We tried to to stop the mob but the miscreants scuffled with the police part, pelted stones and rushed into Masjid after breaking the main door of Masjid. The above case was registered after recording my statement and the accused persons have obstructed us in discharging our govt. duty by using criminal force to deter us from discharging our Govt. duty by causing injuries upon us.
Accused [ENTITY] was arrested and other accused persons interrogated and their arrest was not made due to Administrative ground and their names have been put in column no. 2 of the charge sheet.
That due to exigencies of our duty, we are unable to attend the Hon'ble Court on every date of hearing. We may kindly be exempted from appearance and allowed to be represented through the Ld. APP attached to the Hon'ble Court.
[CASE NUMBER]/E P.S. New Ashok Nagar".
The above complaint does not show that the accused have set fire.
11. The entire case is based upon the statements of police personnel. The charge sheet is filed on the basis of the voluntary statements made by the accused persons. Such statements recorded have not led the police party for any discovery. The statements recorded by the police are hit by [SECTION] of the [ACT]. This Court has gone through such of the statements made. None from the madrasa had complained about the incident. In the absence of any material to hold that the accused had participated in the mob of 100-150 persons with specific overt acts against each of them, the charge sheet as submitted by the police does not make out sufficient ground to proceed against the accused, in the absence of specific overt acts to constitute the offences alleged. Moreover the offences are complained of the year 2003.
12. For the aforesaid reasons, this Court is constrained to hold that there is no material to proceed against the accused to frame the charge and accordingly all the accused are discharged for the offences mentioned above. A copy of this order be sent to the Ld. M.M. File be consigned to record room. [ENTITY] Date: 2018.12.04 12:39:08 -0400 Typed to the dictation directly, corrected on the system and ([ENTITY]) pronounced in the open court District & Sessions Judge on 04.12.2018. Shahdara District, Delhi