Delhi Violence Tahir Hussain, 9 Others Discharged From Graver Offence; Charges Framed

On October 19, a Delhi Court discharged the former AamAadmi Party (AAP) Councillor Tahir Hussain and nine others, namely Mohd. Shadab, Shah Alam, Riyasat Ali, Gulfam, Rashid, Mohd. Rihan, Mohd. Abid, Arshad Qayyum and Irshad Ahmed, from the charge of 'causing mischief by fire or explosive substance with intent to destroy a building', in a case of 2020 North-East Delhi riots. This comes after the Karkardooma Court, on October 13, ordered for the framing of riot and murder charges against former AAP leader Tahir Hussain and others. 

Tahir Hussain has been behind bars since March 2020 in the North-East Delhi riots case. According to the court, Hussain and the other five defendants, Tanvir Malik, Gulfam, Nazim, Kasim, and Shah Alam, were the key masterminds behind the riots that aimed to targeting Hindus. They are alleged to have engaged in such behavior that appeared to undermine relations between Muslims and Hindus.

Tahir Hussain has been behind bars since March 2020 in the North-East Delhi riots case. According to the court, Hussain and the other five defendants, Tanvir Malik, Gulfam, Nazim, Kasim, and Shah Alam, were the key masterminds behind the riots that aimed to targeting Hindus. They are alleged to have engaged in such behavior that appeared to undermine relations between Muslims and Hindus.

Framing of Charges:

While hearing the complaint made by Ajay Jha and framing thecharges in the case, Additional Sessions Judge Pulastya Pramachalya ruled that charges should be filed against the Hussain and the five others (mentioned above). In his complaint, Ajay Jha had claimed that a crowd fired at him on February 25, 2020, near Chand Bagh.

"I find all accused persons liable to be tried for offences punishable under Sections 120B (criminal conspiracy) read with Sections 147 (rioting), 148 (rioting, armed with a deadly weapon), 153A (promoting enmity between classes), and 302 (murder) of the Indian Penal Code," the judge said in an order dated October 13, as reported by the Outlook.

The judge also directed that charges be filed against each and every defendant under Sections 149 (every member of an unlawful assembly guilty of offense committed in furtherance of common goal) and Section 307 of the IPC (attempt to kill) of the IPC.

"They are also found liable to be tried for offences punishable under Sections 147, 148, 307 read with 120B and 149 of the IPC… and offences punishable under Section 153A read with 120B and 149 of the IPC," the judge observed, as reported by the Outlook. 

Madhukar Pandey, the special public prosecutor in this case, emphasised that the substantive offence was framed for the charge of attempt to murder. He further added that as the conspiracy was to murder, charges for the offence of criminal conspiracy read with murder and others were framed. According to the court, Gulfam and Tanveer were also facing charges under the Arms Act.

As reported by the Outlook, the court said, "From the statements of various witnesses, it was reflected that all accused were part of the mob that continuously indulged in the firing of gunshots, pelting of stones, and petrol bombs towards Hindus and houses of Hindus. These acts of the mob make it clear that their objective was to harm Hindus in their body and property to the maximum possible extent."

The court also highlighted that the testimony of the witnesses demonstrated that the crowd shot indiscriminately and deliberately, injuring numerous individuals, including the complainant. It was further determined that a test identification parade (TIP) was not necessary in this case since the witnesses knew the defendants, and that deficiencies like the lack of video and the failure to find the real weapon did not render the prosecution's case incredulous.

Further the court also observed, that, "Significance of such omissions depends upon the facts of each case and that too at the final stage of the case. All accused are liable to be tried for hatching a criminal conspiracy to indulge in riot and kill Hindus and harm the properties of Hindus and consequent to such conspiracy firing and causing gunshot injury to (complainant) Ajay Jha."

Discharge from Section 436 and 505

Section 436 of the Code provides for sentencing of anyone who commits mischief by fire or any explosive substance, with an intent to cause destruction of any building used as a place of worship or as a human dwelling or as a place for the custody of property. The offence is punishable with life imprisonment or with imprisonment of a term which may extend to ten years and with fine.

Deciding on the complaint and statement made by one Jai Bhagwan, the defendants, Tahir Hussain and others, were discharged from the charges made under Section 436 and 505. According to the ASJ, it was implausible to conclude from the complaint and statement provided by Jai Bhagwan that the offense listed in Section 436 had been committed. "It is well apparent that this Section was added in this case without due application of mind. Hence, all the accused persons are discharged for offence under Section 436 IPC," the court order stated in Para 3.

The court also made the observation that organising a riot among community members and taking action to carry it out might be considered an umbrella conspiracy, and those participating in it may or may not also be implicated in the other conspiracies and vice versa. 

"There is the concept of an Umbrella Conspiracy being the larger conspiracy and several smaller conspiracies under the larger conspiracy. The objective of an Umbrella Conspiracy may be wider than the objective of a smaller conspiracy. Planning to ignite a communal riot and taking steps for the prosecution of such plan, could be Umbrella Conspiracy and participants to this conspiracy may or may not be part of each smaller conspiracy and vice versa," the court further said, as reported by LiveLaw. In pursuance of the objective of the larger conspiracy, when smaller plans are made and executed to cause an incident of a riot at a particular place or area involving some other persons (perhaps including local persons), this becomes a case of smaller conspiracy under Umbrella Conspiracy, the court added.

The SPP was asked to identify the evidence and allegations that supported the charged offense while the judge deliberated the case on the framing of charges under Section 436 of the IPC.However, the court noted that after reading both the primary charge sheet and the first supplementary charge sheet submitted by the police, "one cannot get any idea as to what particular incident this particular case was registered and charge sheet was filed, aside from general information about the incidents that occurred during the riots," as reported by LiveLaw.

The court then went on to remark that the SPP had only brought up Jai Bhagwan's testimony and complaint in relation to the second charge sheet. The complaint's endorsement has "many cuts and revisions," the court further noted in Para one of its order.

The complainant stated in March 2020 that he lost furniture worth Rs. 35,000 that he had purchased for his daughter's wedding as a result of the disturbances. After that, on September 15, 2021, his statement was recorded. In it, he named many suspected parties and said that they were hurling stones and petrol bombs, as was noted in the court order.

"However, the focus of allegations remained that he was bringing furnitures as well as other electronic items for the purpose of marriage of his daughter from Hapur, U.P on a loading vehicle, which was intercepted and stopped near Chand Bagh Pulia, on Karawal Nagar Road, by the mob. Thereafter, all the articles kept in that vehicle were thrown on the road," noted the court. Accordingly, the court observed: "In response to a specific query of the court, ld. Special PP submitted that apart from this statement, there is no other statement of this complaint/witness. The above mentioned complaint as well as the statement of Sh. Jai Bhagwan, by no stretch of imagination shows commission of offence under Section 436 IPC," the court noted in Para 2 of its order.

Pursuant to this, the Additional Sessions Judge PulastyaPramachala remanded the case back to the Chief Metropolitan Magistrate (CMM) for trial of other offences under Section 147, 148, 149, 427, 120B of IPC and Section 3 and 4 of Prevention of Damage to Public Property Act. 

The order of the court can be read here.

Brief facts about the case

After receiving a PCR call on February 25, 2020, the Dayalpur police station filed the FIR 80/2020, which claimed that 100 persons were allegedly standing on Tahir Hussain's terrace with petrol bombs in hand and throwing them at members of the Hindu community. Furthermore, it was claimed that the rioters set fire to and destroyed a number of homes, businesses, and other buildings.