"Inherently Improbable": Court On Delhi Cops Charging 6 Men With Dacoity

Acquitting six accused of the charge of dacoity and five of them of the charge of being illegal residents, a court in Delhi has observed that in the country's prevailing scenario, it would be a "misuse" of the Foreigners Act to charge "suspected criminals" with "issues relating to citizenship".

Also observing that police, in the first place, lacked diligence in collecting the documents regarding citizenship, the court wondered whether the provisions of the Foreigners Act would have been invoked against the accused if they had any other religious and ethnic identities.

The court was for hearing a case against the six accused for allegedly making preparations to commit dacoity and assembling for the said purpose, along with purportedly obstructing and assaulting a police team that apprehended them on the basis of a tip-off.

The incident took place on October 29, 2015 at a park in Geeta Colony in Delhi, the prosecution said.

All the accused were charged under various provisions of the Indian Penal Code (IPC), while two were also charged under sections of the Arms Act.

Five of the accused were charged under section 14 of the Foreigners Act, being suspected as illegal residents in India and originally of Bangladeshi origin.

"Since the prosecution has failed to prove the allegations under any of the articles of charge, all accused are acquitted.... Accused are (also) acquitted under section 14 of the Foreigners Act," Additional Sessions Judge Vishal Gogne said in a recent order.

"The court is yet compelled to make a necessary observation. Issues relating to citizenship, especially in the contemporary context, have undeniably become linked to questions of identity, mostly religious and often ethnic, and this complexity belies the reality of a vast number of residents of India who still do not possess authentic documents related to citizenship," the judge said.

He also said it is "commonly reported" that documents issued by the government, such as driving licences and Aadhaar cards, are being forged with "ease".

"In this scenario, while it may be prima facie valid to charge the accused persons with IPC-related offences including theft, robbery and dacoity, it would be a misuse of section 14 of the Foreigners Act to then also saddle suspected criminals with issues relating to citizenship, especially when diligence is lacking from the police agencies in first collecting the available documents," the judge said.

"Indeed, the court wonders whether section 14 would have been added to the chargesheet if the suspected dacoits had religious and ethnic identities other than the hue they reflect," he added.

Making a preliminary observation on the nature of the principal offences in question -- section 399 of the IPC regarding making preparations for committing dacoity and section 402 pertaining to assembling for the purpose of committing dacoity -- the court said both penal provisions are of a "classically colonial heritage" when incidents of dacoity were reportedly rampant across the British empire in India.

"While the occurrence of offences punishable under these provisions could not be ruled out as a possibility a century-and-a-half back in time and can also not be placed in the realm of the impossible at present, it does bear observation that these provisions...were designed more to place suspected or undesirable elements behind bars rather than secure conviction on tangible evidence," the court said.

It said it is an "oddity" for contemporary jurisprudence that these provisions continued in the statute.

Rejecting the prosecution's version, the court said it is an "inherently improbable, if not outright impossible conduct" for the accused to first land in the middle of the park late at night, find a room and then openly express their intentions of committing dacoity near a wall, without a whisper of a sound from the approaching police party being heard by them.

It said the police team of 11 personnel reaching the accused silently, "with feline feet and mute expressions, is a scenario based on fantasy and not reality".

"The court rejects the possibility that the accused persons were foolhardy enough to present themselves on a platter for conviction under archaic provisions...for serving time in central jail," the judge said.

He further said the "sheer unreasonableness" of the accused preparing for dacoity in a public place was confirmed by the absence of any public witness to the proceedings.

The non-joining of public witnesses denied credibility to the allegations, the court added.

"When the presence of the accused at the site of the arrest and their purported planning of a dacoity stand disbelieved, there is no basis for the court to conclude that the accused persons then obstructed the discharge of public duties by the police team and assaulted them," the judge said.

The court also trashed the prosecution's version that one of the accused fired on the police team with a country-made pistol.

"With the raid proceedings remaining doubtful, the recovery of the respective weapons from accused...remains not proved," it said.

The court also said the accused could not be charged under the Foreigners Act because of their "evident continuous stay" in the country and "the want of any alternative citizenship proof".

The Geeta Colony police station had filed a chargesheet against Anul Haq, Miraz alias "chota", Mohammad Burhan, Miraz alias "lambu", Mohammad Suhail and Saddam for various offences under the IPC, including attempt to murder, assault or criminal force to deter public servant from discharge of duty, obstructing public servant in discharge of public functions and common intention.

Saddam and Miraz ("lambu") were also charged under the Arms Act, while all the accused, except Haq, were also charged under the Foreigners Act.

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