New Delhi, October 21: The Delhi High Court Wednesday set aside a sessions court order rejecting the plea of Chief Minister Arvind Kejriwal and Deputy Chief Minister Manish Sisodia to provide the statement of one of the witnesses in the case related to alleged assault of then Chief Secretary Anshu Prakash in 2018.

Police cannot pick and choose what evidence will be placed on record, the court said.

Justice Suresh K Kait directed the trial court to consider the statement in question of February 21, 2018 at the time of passing the order on charge, news agency PTI reported.

The high court also said that it was the “prime duty” of the investigating agency to conduct a free and fair probe and thereafter, bring to the notice of the trial court all the evidence 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 VK Jain (witness), which is part of ‘case diary’ and placed on record by the accused, at the time of passing the order on charge,” Justice Kait said in his order.

Arvind Kejriwal and Manish Sisodia, in their plea moved through advocate Mohd. Irsad, had alleged that the prosecution withheld Jain’s statement recorded on February 21, 2018 as it did not suit the prosecution case and helped in falsely implicating the petitioners. They had contended that a copy of the statement ought to have been supplied to them.

The state government, represented by the Delhi government standing counsel (criminal) Rahul Mehra, had in its status report contended that Jain was called to the police station on February 21, 2018 and he was examined on that day, but no statement under section 161 Criminal Procedure Code (CrPC) was recorded.

Jain’s statement under section 161 CrPC was recorded only on February 22, 2018 and May 9, 2018, it had told the high court.

The government had also claimed that the reference in Jain’s 161 CrPC statement of May 9, 2018 with regard to recording of statements under section 161 CrPC and section 164 CrpC was a “typographical error”.

A statement under section 161 CrPC is made to a police officer and section 164 CrPC deals with statements or confessions made before a magistrate.

The government had contended that both those statements, of Jain, were recorded on February 22, 2018.

It further argued that under the 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 high court did not agree with the contentions, saying the sessions court in its order July 24, 2019 has recorded that on perusal of case diary it shows that Jain was examined in the police station on February 21, 2018 in depth and a report was prepared.

“The case diary further shows that after examination, VK 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 VK 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,” the high court noted in its order.

The high court further said that while prosecution has completely denied that no statement was recorded on February 21, 2018, the case diary mentions that a statement was recorded on that date.

“Thus, the stand of prosecution cannot be accepted which is contrary to their own record,” the high court said. It also termed as “perverse” the sessions court’s opinion that since oral examination of Jain was recorded on February 21, 2018, as per case diary, it cannot be provided to the accused as it was not recorded under section 161 CrPC.

The sessions court, however , said that the oral statement can be used by the accused during the trial.

“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,” Justice Kait said.

The criminal case relates to alleged assault on then Chief Secretary Anshu Prakash during a meeting at Mr Kejriwal’s official residence on February 19, 2018.

Anshu Prakash was later transferred and is now the Additional Secretary in the Department of Telecom.

On October 25, 2018, Kejriwal, Sisodia and nine other AAP MLAs were granted bail by the trial court in the assault case.

The other two MLAs, Amanatullah Khan and Prakash Jarwal, who are also accused were earlier arrested in the case and granted bail by the high court.

The alleged assault had triggered a bitter tussle between the Delhi government and its bureaucrats.

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