The Delhi high court on Wednesday set aside a sessions court order, allowing chief minister Arvind Kejriwal and deputy CM Manish Sisodia to access the statement of one of the witnesses in the case related to alleged assault on former chief secretary Anshu Prakash in 2018.

Justice Suresh Kait said, “It is the prime duty of the investigating agency to do free and fair investigation, and bring all the evidences collected in the notice of court without pick and choose.”

It directed the trial court to consider statement of the chief minister’s former advisor, VK Jain, recorded on February 21, 2018 which is part of police’s records in the form of a “case diary’, and place on record at the time of passing the order.

“The investigating agency has no power to appreciate the evidence, it rests with the court,” the judge said in his 37-page order.

The court’s judgment came on a plea filed by Kejriwal and Sisodia, alleging that the prosecution(police) withheld Jain’s statement recorded on February 21, 2018, as it did not suit the prosecution’s case and helped in falsely implicating the petitioners.

Appearing for the CM and his deputy, senior advocates N Hari Haran and Dayan Krishnan told the court that the copy of the statement ought to have been supplied to them as it is a part of the case diary. The senior counsels contended that even the statement of V K Jain dated May 9, 2018 which is part of the charge sheet says, “….in continuation of the statement dated 21.02.2018”, which shows that the police is concealing the facts.

Appearing for the prosecution, standing counsel (criminal) Rahul Mehra said the police in its status report had 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.

It said that there is some typographical error in the recording of the statements on May 9, and the statement was in continuation of February 22 and not February 21 as mentioned in the charge sheet.

However, the court did not agree with these contentions, stating that trial court in its order July 24, 2019 had recorded that on perusal of case diary it shows that Jain was examined in the police station on February 21, 2018.

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.

The court also said the opinion of the trial court stating that since oral examination of Jain was recorded on February 21, 2018 as per the case diary, it cannot be provided to the accused, is “perverse”.

“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 …..”

Following this, the court ordered that the statement be considered by the trial court during the framing of charges since it is a part of the case diary. The matter is listed in the lower court where the judge is hearing the arguments on framing of charges.

The Delhi police had on February 20, 2018 filed a first information report (FIR) based on former chief secretary Anshu Prakash’s complaint, in which he had alleged that he was called by the Kejriwal’s advisor, VK Jain, for a midnight meeting to discuss release of the party’s advertisements related to the government completing three years in Delhi.

Prakash said that he was manhandled and assaulted in the course of the meeting. Police filed the case after the chief secretary was examined by a team of doctors at the Ram Manohar Lohia hospital.

The legislators and the senior minister of the Delhi government have denied the allegations. The party’s chief spokesperson Saurabh Bhardwaj has accused Prakash of making false allegations at the behest of the Centre.

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