'Court not mere post office to frame charges': 7 accused of arson during 2019 protest against Pak discharged

Second Additional Sessions Judge Anoop Kumar Sharma also said that mere presence in a large gathering could not by itself attract criminal liability for offences allegedly committed by some members of the mob. The court said the prosecution had failed to place on record sufficient material to show that the accused shared the common object of the assembly or had directly or indirectly participated in the alleged arson. The case arose from events of February 15, 2019, a day after the Pulwama terror attack that left 40 CRPF personnel killed in a suicide car bomb attack. According to the prosecution, a Jammu Bandh was called following the Pulwama attack, with Section 144 CrPC restrictions in force. A mob of 600-700 allegedly moved from J P Chowk towards Raghunath Bazaar in the city before turning unruly near Vivekanand Chowk, where vehicles were damaged and five to six allegedly set ablaze. Dismissing the chargesheet against all seven accused -- Rohit Sharma, Kailash Kumar, Manant Kumar, Sajan Kumar, Sukhdev Singh alias "Rinku", Sahil Sharma and Jagdish Kumar -- on September 5, the court discharged them of offences under Sections 188, 147, 148, 149, 435 and 427 of the Ranbir Penal Code (RPC). The judge stressed that a court considering charges cannot mechanically accept the prosecution's case. "While considering a case at the stage of framing charge or ordering a discharge of the accused persons, it is well established proposition of law that court has to apply judicial mind to the material placed before it, to determine whether there are sufficient grounds for proceeding or not. "A court is not to act as a mere Post Office to frame the charge at the behest of prosecution but has to exercise its judicial mind to the facts of the case, in order to determine whether a case for trial has been made out or not," the judge said in his 15-page order. The court also relied on the principle that, even at the initial stage, the material must be judicially assessed and the prosecution's assertions cannot simply be accepted as gospel truth when they run contrary to common sense or the broad probabilities of the case. The judge found a fundamental gap between establishing that a person was present somewhere in or around the gathering and establishing that the person shared the unlawful common object that subsequently resulted in violence. "Simply having identified the accused persons, to be the part of entire 600/700 mob, without any evidence of their direct or indirect participation in the act of arson, thus can't fasten them with the attraction of the offence of section 149 of RPC," the court said. It noted that the mob had assembled to protest against the country held responsible for the Pulwama attack and was raising slogans like "Hindustan Zindabad Pakistan Murdabad". The gathering's initial common object was not unlawful, the judge said, adding the situation appeared to have changed only after the police stopped the mob from proceeding further. He said the investigating agency needed to establish who committed the arson after that point and who abetted it, rather than simply identifying individuals who had been part of the larger gathering. The court also rejected the suggestion that mobile-phone tower locations placing the accused in the vicinity of the incident were, by themselves, enough to establish criminal liability. "Just by collecting the tower location of their cell phone numbers to be in the vicinity of the alleged place of occurrence, is not sufficient..." the court said, noting that there was no evidence that the mob had been equipped with deadly weapons or combustible material from the outset, which could have supported an inference that violence and arson were its common object from the beginning. The court found that the police witnesses who claimed to have seen the accused in the mob had not explained the time, place or circumstances in which they had noticed them. It consequently held that merely noticing some of the accused among a gathering of hundreds did not make them liable for the burning of vehicles through Section 149 RPC. It said there was "insufficient material on record" to charge them under Sections 147, 148 and 149 RPC and, consequently, they could not be charged for the connected offences under Sections 427 and 435 RPC either. The court said the material against the accused amounted at most to their presence in a large gathering and did not rise beyond a very weak inference of involvement. "Noticing their presence in a mob of 600/700 persons, gives rise to a very bleak suspicion...the suspicion, if any, is certainly not grave but a bleak one, the accused persons thus deserve to be discharged," the court said. PTI TAS SKL KVK KVK