In the Court of Samar Vishal Additional Chief Metropolitan Magistrate – I Rouse Avenue Court Complex

Cr Case 31/2019 State Vs. and others FIR No : 23 /2014 Police Station : Parliament Street 05.07.2019

ORDER ON CHARGE

1. The case pertains to a dharna given by the Chief Minister of Delhi alongwith his supporters at Rail Bhawan, New Delhi on 20.01.2014 in violation of the prohibitory orders under section 144 Cr.PC. The present charge­sheet has been filed in FIR No. 23/2014 of Police Station Parliament Street, New Delhi against the accused Sh. Arvind Kejriwal, Sh. , Ms. , Sh. , Sh. Sanjay Singh and Sh. for commission of offence under section 145/147/186/353/188/332 read with section 149 of the Indian Penal Code.

2. The FIR of this case was registered on a complaint of Sub­ Inspector Ghanshyam. According to this complaint, the

FIR No. 23/2014 Page No. 1/16 State vs. Arvind Kejriwal and others complainant got an information that on 20.01.2014, Sh. Arvind Kejriwal, Chief Minister of Delhi with his supporters was supposed to protest in front of North Block. A day before the PS to the Chief Minister of Delhi was informed through telephone that a promulgation has been made under section 144 Cr.PC with respect to the areas around North Block, Vijay Chowk, Rail Bhawan and other areas of Parliament Street and that any protest, dharna, speech and assembly of more than five persons in those areas have been declared unlawful. A request was made to the Chief Minister to restrict his protest to Jantar Mantar about which he assured to look into this request. Shri Anyesh Roy, Assistant Commissioner of Police, Parliament Street has promulgated an order No. 393­510/SO/ACP/Pt Street/NDD on 19.01.2014 under section 144 Cr.PC, which restricted the aforesaid activities in the aforesaid areas. On 20.01.2014, the police made required arrangements in view of the proposed protest by the Chief Minster of Delhi. At around 11:15 am, Sh. Arvind Kejriwal, Sh. Manish Sisodia came near the Rail Bhawan Chowk in Wagnor car followed by 4­5 other cars in which their supporters were sitting. Sub­Inspector Ghanshyam greeted them and elaborately told them about the orders under section 144 Cr.PC. He also informed them that due to the Republic Day rehearsal on Vijay Chowk and Rajpath, it was not possible for

FIR No. 23/2014 Page No. 2/16 State vs. Arvind Kejriwal and others them to reach Vijay Chowk. They said that they will wait till the rehearsal is over. The complainant offered the Chief Minister to take him to North Block in his car but Sh. Arvind Kejriwal said that he will go only with his supporters and media persons. In a short time, around 250 / 300 more supporters of Sh. Arvind Kejriwal also gathered there in which the accused Somnath Bharti and Ms. Rakhi Birla were also present. Without paying any heed to the request of the police, all these persons with the sole object to protest at the office of Home Minister started moving in a form of procession. The police tried to stop them at Raisina Road, Rail Bhawan Chowk by putting barricades. The leaders provoked the supporters to keep moving. The supporters had flags and brooms in their hands and while raising slogans these protesters scuffled and jostled with the police in an attempt to move forward. When the police was unable to stop them with mere words, the gathering was declared an unlawful assembly and directed to be dispersed. The crowd was adamant and did not took the police warning seriously on which after great efforts, the police stopped the crowd from marching forward. Irked by the police action, Sh. Arvind Kejriwal sat on a dharna near Rail Bhawan and from there gave provocative speeches. According to the complaint, certain policemen received injuries while trying to stop the crowd. The complainant alleged that Sh. Arvind Kejriwal had deliberately and

FIR No. 23/2014 Page No. 3/16 State vs. Arvind Kejriwal and others knowingly flouted the orders under section 144 Cr.PC and forming an unlawful assembly created hindrances and obstructions in the duties of the police and committed an offence under section 145/147/186/353/188/332 read with section 149 of the Indian Penal Code.

3. After registration of FIR, the investigation was carried out during which the site plan was prepared and the MLCs of the injured policemen were obtained. The statements of the witnesses acquainted with the facts of the case were recorded under section 161 Cr.PC. The investigating officer obtained the order under section 144 Cr.PC and the video footages of the incident. The transcript of the speech of Sh. Arvind Kejriwal was prepared and placed on record. During investigation, efforts were made to establish the identity of the other persons, who took part in that incident.

4. Finally, the chargesheet was filed against six accused ­ Sh. Arvind Kejriwal, Sh. Manish Sisodia, Ms. Rakhi Birla, Sh. Somnath Bharti, Sh. Sanjay Singh and Sh. Ashutosh.

5. The case is at the stage of charge under section 239/240 Cr.PC.

FIR No. 23/2014 Page No. 4/16 State vs. Arvind Kejriwal and others 6. I have heard counsels for the accused Sh. B.S. Joon & Rishi Pal and learned Assistant Public Prosecutor for the State Sh. Lalit Pingolia and gone through the records of the case.

7. Learned Assistant Public Prosecutor for the State has submitted that the State has a strong case of violation of prohibitory orders under section 144 Cr.PC by the accused persons. It is submitted that there is sufficient evidence which shows a grave suspicion that the accused persons were aware of the order under section 144 Cr.PC and that they knowingly flouted that order. It is further submitted that after the declaration of the assembly as unlawful, all the members of the assembly are liable for the acts done by any of the member of that assembly and therefore he requested that the charges be framed against the accused persons for commission of offence under section 145/147/186/353/188/332 read with section 149 of the Indian Penal Code.

8. The defence has argued that the accused persons be discharged from this case. As per defence, the delay in registration of FIR, order under section 144 Cr.PC being bad in law, non­ communication of that order, defect in cognizance are valid reasons to discharge the accused persons. I will deal with these submissions one by one.

FIR No. 23/2014 Page No. 5/16 State vs. Arvind Kejriwal and others 9. The first ground taken for discharge is delay in the registration of FIR. It is submitted that the time of incident was 12 pm on 20.01.2014, whereas the complaint / rukka was sent to the police station at around 9:30 pm. It is the stand of the prosecution that there is no delay in the registration of the case as the violation of the orders under section 144 Cr.PC continued for around two days as per the newspaper reports annexed with the chargesheet and therefore the FIR was registered during the continuance of the order of violation of prohibitory orders and therefore there was no delay in the registration of the case. In fact, the FIR was registered when the offence was continuing. Here, I agree with the prosecution that there is no delay in the registration of the case and the police has registered the case within a reasonable time considering the fact that the incident pertains to a long drawn protest which continued for around two days. Further, in such cases, the time taken by the police to register the FIR cannot be held to be an inordinate delay considering that the police was also involved in maintaining the law and order situation created by the protest.

10. The next submission of defence is that the cognizance of the offences taken by this Court is bad in law. It is submitted that apart

FIR No. 23/2014 Page No. 6/16 State vs. Arvind Kejriwal and others from other offences, the charge­sheet also alleges the commission of offence under section 186 and 188 IPC. It is argued that the Court has not taken a separate cognizance on the basis of the complaint under section 195 Cr.PC and the other offences are so inextricably connected to the offences under section 186 / 188 IPC that it will make the cognizance of all the offences bad in law. Reliance is placed on the judgments titled as Court on its on Motion vs. State Crl.MC 2774/2011 dated 09.05.2012 of Hon'ble High Court of Delhi and Soni Dineshkumar Dahyalal vs. State of Gujrat R/CR.MA/17270/2012 of Hon'ble Gujrat High Court in support of this contention. I have gone through both these judgments. The reliance of the defence on these judgment is misplaced for seeking discharge in this case.

11. Undisputedly alongwith the charge­sheet, a complaint under section 195 Cr.PC has been filed, which is addressed to the Court. The complaint is filed by Anyesh Roy, Assistant Commissioner of Police, Sub­Division Parliament Street, whose order under section 144 Cr.PC was violated in this case. Therefore, he is competent under section 195 Cr.PC to file this complaint. The cognizance in this case was taken on 31.05.2014 on the basis of material on record. The material on record constituted the charge­sheet as well as this complaint under section 195 Cr.PC. Therefore, it shall be a

FIR No. 23/2014 Page No. 7/16 State vs. Arvind Kejriwal and others fallacious presumption that the cognizance was not taken on the basis of the complaint under section 195 Cr.PC. Further, in the judgment Court of its own motion (supra) it is clearly mentioned that such a defect of taking cognizance only on the basis of charge­sheet and not on a complaint under section 195 Cr.PC is a curable defect. This defect could have been cured by this Court taking cognizance of the complaint under section 195 Cr.PC at this stage. But there is no occasion for it because the cognizance of all the offences including those under section 186/188 IPC has been rightfully taken in this case. The judgment of Soni Dineshkumar Dahyalal (supra) is also of no use to the defence because in this case, the point for consideration was whether the Court can take cognizance of the offence punishable under section 186 IPC on a police report. In that case, there was no complaint in writing by competent person under section 195 Cr.PC. On the contrary, in the present case, not only is there a valid complaint under section 195 Cr.PC but cognizance has been taken on the basis of this complaint as well as the charge­sheet.

12. Otherwise also its not the law that in the absence of a complaint under section 195 Cr.PC, the Court cannot proceed for those offences for which such a complaint is not required. The Hon'ble Supreme Court of in the case of Pankaj Aggarwal and Ors.

FIR No. 23/2014 Page No. 8/16 State vs. Arvind Kejriwal and others v. State of Delhi and Anr. 2001(3) Crimes 361 (SC) after referring to the earlier decision in Durga Charan Naik v. State of Orissa, held that the offences under Sections 186, and 353 or 332 IPC are distinct and in the absence of a compliant under Section 195 Cr.P.C. regarding the offence under Section 186 IPC, trial for the offence under Section 353 or 332 IPC is not barred. It was held:­ “But in view of the judgment of this Court in , where the Court has analysed the provisions of Section 353, IPC and Section 186, IPC and held that the two are distinct offences and the quality of the offence is also different, we are of the opinion that judgment of the Punjab High Court is not correct in law and has taken a view contrary to the law laid down by this Court. What has been stated earlier in the aforesaid case in relation to the provisions of Section 353, IPC would equally apply to the provisions of Section 332 of the IPC.”

13. This judgment was relied upon by Hon'ble Delhi High Court in Gurcharan Singh Arora and Anr. vs The State, 96 (2002) DLT 181, Sunil vs State (NCT of Delhi) Crl. Rev. 20/2011 dated 03.01.2012 and Rajesh Kapoor vs State 96(2002)DLT 381 to hold a view contrary to what the accused are now pleading.

FIR No. 23/2014 Page No. 9/16 State vs. Arvind Kejriwal and others 14. The next contention of the defence is that the order passed by Assistant Commissioner of Police Anyesh Roy is an illegal order and therefore its violation is not an offence in the eyes of law. It is submitted that the reasons for imposing the order under section 144 Cr.PC. is not mentioned in that order. The State argued that the legality of this order could not be adjudicated at this stage.

15. It is true that what were the circumstances which prompted the promulgation of the order under section 144 Cr.PC are not mentioned in the order itself but it is also a fact that the State is not precluded from placing on record such reasons if the case goes for evidence. ACP Anyesh Roy is a witness in this case and he can depose about the circumstances leading to the promulgation of such order. While determining the legality / illegality of the order passed by ACP Anyesh Roy, the jurisdiction of this Court shall be restricted to the point of making an objective analysis of the material placed before ACP Anyesh Roy at the time of passing the order. The Court shall not have the jurisdiction to go to the extent of interfering with the subjective satisfaction of ACP Anyesh Roy in the existence of the conditions for promulgation of order under section 144 Cr.PC. Therefore, any deficiency in the order under section 144 Cr.PC can be agitated by the defence at the stage of trial.

FIR No. 23/2014 Page No. 10/16 State vs. Arvind Kejriwal and others 16. Next, it has been argued that the order was not communicated to the accused persons. This is not a tenable argument because the copy of the order was sent to the Chief Secretary, and Inspector Ghanshyam, who has filed the complaint, has categorically mentioned that he has informed the accused about the imposition of prohibitory orders under section 144 Cr.PC. The newspaper “The time of India” dated 21.01.2014 has stated that Sh. Arvind Kejriwal rejected all pleas to move to Jantar Mantar since section 144 Cr.PC was imposed in that area. Prima facie it appears that the accused persons were aware of the prohibitory order despite that they continued with the protest in that area. The statement recorded under section 161 Cr.PC of Constable Harpal, Inspector Surender Singh Rana, Kuldeep Singh, Inspector Kirpal Singh, Constable Rajender Kumar and constable Devender clearly shows that they had communicated the accused persons about the prohibitory orders. Constable Amit's statement shows that he received the copy of the order in Delhi Secretariat under due acknowledgement. It has also been argued that the guidelines passed by the Hon'ble Supreme Court of India in Ramlila Maidan's case (Re­Ramlila Maidan Incident(2012) 5 Supreme Court Cases I) has not been followed in this case. This incident was reported by all the leading electronic and print media, which is

FIR No. 23/2014 Page No. 11/16 State vs. Arvind Kejriwal and others reflected from the newspapers placed on record and the video footages collected from news channels. Its seems from the newspapers report that this protest extended till the next day i.e. 21.01.2014. Therefore, the directions regarding the communication of the order in Ramlila Maidan's case will not help the accused as there is prima facie evidence of their knowledge of the prohibitory orders. Therefore, the submissions regarding non­communication of the prohibitory orders is not tenable at this stage keeping in view the categorical evidence on record in this regard. The burden shall be on the accused that they were ignorant of the prohibitory order as they plead the same contrary to the prosecution's case.

17. In Soma Chakravarty v. State (2007) 5 SCC 403 Hon'ble Supreme Court has held that :­ “10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the court could form an opinion that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence at the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the

FIR No. 23/2014 Page No. 12/16 State vs. Arvind Kejriwal and others prosecution has to be accepted as true at that stage. Before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial”

18.Now coming to the offences committed during that protest. The charge­sheet is filed under section 145/147/186/353/188/332 read with section 149 of the Indian Penal Code. As far as the commission of offences under section 186/188 IPC is concerned, there exists grave suspicion that the accused Sh. Arvind Kejriwal, Sh. Manish Sisodia, Ms. Rakhi Birla, Sh. Somnath Bharti had committed these offences. Section 188 IPC punishes the disobedience of an order duly promulgated by public servant. The order under section 144 Cr.PC is that order whose disobedience has been deliberately committed. When the police force was trying to control the mob, which was of around 250/300 supporters of the accused, this crowd scuffled and jostled with those policemen and assaulted them in their attempt to move forward towards North Block. The common object of the accused Sh. Arvind Kejriwal, Sh. Manish Sisodia, Ms. Rakhi Birla, Sh. Somnath Bharti, alongwith their supporters was to disobey the

FIR No. 23/2014 Page No. 13/16 State vs. Arvind Kejriwal and others prohibitory orders and while doing so on provocation by the aforesaid leaders, the crowd also committed the offence of rioting, which is punishable under section 147 IPC. These accused alongwith their supporters were members of an unlawful assembly and a mere such membership is a punishable offence under section 143 IPC. That assembly was directed to be dispersed despite that the accused and their supporters continued in that unlawful assembly knowingly that it has been commanded to disperse. By doing this, these accused and their supporters committed the offence under section 145 IPC. The assault committed on the policemen particularly those whose medical reports are on record amounts to an offence under section 353 IPC and since the assault resulted in simple hurt to those policemen, commission of offence under section 332 IPC is attracted.

19.The accused Sh. Arvind Kejriwal, Sh. Manish Sisodia, Ms. Rakhi Birla and Sh. Somnath Bharti may not have personally committed the offences under section 332/353 IPC but these offences were committed by some members of that unlawful assembly and therefore by virtue of section 149 IPC, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that

FIR No. 23/2014 Page No. 14/16 State vs. Arvind Kejriwal and others assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. These accused will therefore be liable to charged for offence under section 332/353 IPC with the aid of section 149 IPC due to the proximity of these offences to the common object of that assembly. Even if the offence committed is not in direct prosecution of the common object of that assembly, it may yet fall under section 149 IPC, if it is found that the offence was such that the members knew to be likely to be committed.

20.As far as the accused Sh. Arvind Kejriwal, Sh. Manish Sisodia, Ms. Rakhi Birla, Sh. Somnath Bharti are concerned, there is sufficient evidence to come to a conclusion that there exists a prima facie case and grave suspicion about the commission of the aforesaid discussed offences. As far as the accused Ashutosh and Sanjay Singh is concerned, there is no evidence on record against them regarding their participation in the aforementioned offences. None of the prosecution witnesses have stated their names in their statements nor is there any other material on record for the prosecution to substantiate their case against them. It is not clear that on what basis the investigating officer

FIR No. 23/2014 Page No. 15/16 State vs. Arvind Kejriwal and others mentioned their names in the charge­sheet. Therefore, both the accused Ashutosh and Sanjay Singh are discharged from this case.

21.Accordingly, it is ordered that charges be framed against accused Sh. Arvind Kejriwal, Sh. Manish Sisodia, Ms. Rakhi Birla, Sh. Somnath Bharti for commission of offence under section 143/145/188 IPC and under section 147/186/353/332 IPC read with section 149 IPC.

Announced in the open court on 05th day of July 2019

SAMAR VISHAL ACMM­I/RACC/New Delhi

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