SC strikes down cops’ appeal in ‘assault’ case

The bench emphasised that an investigating agency was duty-bound to be fair also to the accused and was obligated to share everything that was crucial for a fair trial.

The Delhi Police must abide with the duty of being fair, said the Supreme Court on Thursday as it dismissed an appeal by the police against supplying a statement of a witness to Delhi chief minister Arvind Kejriwal and deputy chief minister Manish Sisodia in a case of alleged assault against former chief secretary Anshu Prakash.

On Thursday, the bench took up the Delhi Police’s petition challenging the high court order.(Reuters)

“You (police), as an investigating agency, cannot pick and choose what to show and what not to... It may be a politically hot potato but there is nothing in it legally. You must have a robust sense when it comes to principles of natural justice. The views of the high court support liberty and we will also support it,” said the bench of justices Dhananjaya Y Chandrachud and MR Shah.

“The investigating agency must abide with the duty of being fair. You (police) have to be fair to the accused. It is not that just because something is in favour of the accused, it can be withheld,” the bench added.

Prakash alleged he was assaulted during a meeting at the CM’s residence on February 19, 2018, following which a first information report (FIR) was lodged against Kejriwal, Sisodia and 11 other MLAs of the Aam Aadmi Party (AAP).

In October 2020, the Delhi high court said that the accused should get the copy of the statement made on February 21, 2018 by Kejriwal’s former advisor VK Jain, who was present at the 2018 meeting pertaining to the case. The high court also directed the trial court to consider Jain’s statement at the time of considering the charges against the AAP leaders.

On Thursday, the bench took up the Delhi Police’s petition challenging the high court order. Additional solicitor general Aman Lekhi, appearing for the police, contended that since Jain’s statement was not made under Section 161 of the Criminal Procedure Code (examination of witnesses by police), it could not be supplied to the AAP leaders. Lekhi added that Jain’s statement was recorded in the Case Diary, and that it was a settled law that not everything in the case diary could be given to the accused unless the prosecution sought to depend on it.

But the bench asked why Delhi Police should vehemently oppose sharing statement of a witness when the same person’s previous statement was recorded under Section 161 of CrPC. “Records show that this statement dated February 21, 2018 was in continuation of the previous statement of the same witness. You (police) cannot as an investigating agency pick and choose what to show and what to not. This is an absolutely correct order of the high court,” observed the court.

The bench emphasised that an investigating agency was duty-bound to be fair also to the accused and was obligated to share everything that was crucial for a fair trial.

The law officer tried to persuade the top court that Jain’s statement on February 21, 2018 could not be categorised as evidence under the law and was only a statement recorded in the Case Diary which did not have to be given to the accused. Lekhi complained that the high court judgment will have ramifications in other cases too.

But the court remained firm that the high court order was correct. “Please understand that the criminal justice system is not only for convicting accused but to make sure that the justice dispensation system runs its full course,” the bench told Lekhi.

It told the ASG that if the said statement was going to help the accused, “all the more reason why they should get it”.

“Your arguments are too technical. This is not worth it. It may be a politically hot potato but there is nothing in it legally...If a statement favours the accused, they must still get it. High Court’s is a view that supports liberty and we will support it. It is a correct view,” said the bench, dismissing the appeal.

Kejriwal and Sisodia, in their plea before the high court, accused the prosecution of withholding Jain’s statement since it did not suit their case and helped in falsely implicating them.

Jain, in the 2018 statement that was reproduced in the high court judgment, stated that on the night of February 19, there was a meeting that took place between the AAP leaders and Anshu Prakash on the issue of ‘Doorstep Delivery of Ration’, ‘Advertisement Funds Release’, and slow processing of files. During the meeting, Jain stated, he went to the washroom, and upon returning, saw Prakash leaving. Jain added that he could not say anything about what transpired outside while he was in the washroom.

Delhi Police and state government spokespersons did not respond to queries seeking comments.