Noting that the court was not a mere post office to frame a charge at the behest of the prosecution, a court in Jammu has granted relief to seven men who were booked for allegedly indulging in rioting and arson during a protest against Pakistan in the aftermath of the 2019 Pulwama terror attack.

The court said the accused cannot be connected with an offence committed by a mob unless there is evidence they had the “common unlawful object” with all its members.

Those discharged by the court include Rohit Sharma, Kailash Kumar, Manat Kumar, Sajan Kumar, Sukhdev Singh alias Rinku, Sahil Sharma and Jagdish Kumar.

According to the FIR registered at Jammu City Police Station, a mob of nearly 600-700 people had taken out a procession in the city, raising slogans against Pakistan in protest over the 2019 Pulwama terror attack in which 40 paramilitary personnel were killed. On being stopped by police, they had turned violent and damaged vehicles parked on the roadside, setting six of them on fire, the FIR added.

The alleged accused, according to police, were part of the unlawful assembly and were identified later on the basis of statements of witnesses recorded by the police during the course of investigation. They were accordingly booked for rioting, unlawful assembly, and mischief, among other charges, of the Ranbir Penal Code (RPC).

Dismissing the police challan on Monday, the Second Additional Sessions Judge, Jammu, Anoop Kumar Sharma, noted that in the course of investigation in the case, the probe agency tried to establish the identity of the persons who were part of the said “unlawful assembly/mob” on the basis of statements of some witnesses and the tower location of their cell phone numbers at that time.

“…in order to fasten a person with the culpability of an offence committed by a mob, or an unlawful assembly, it is imperative that the investigating agency must bring on record some cogent evidence showing the accused shared the common objective of that unlawful assembly, rather than his mere being a member of it,” the judge observed.

Story continues below this ad

Simply having identified the accused persons to be part of the entire 600-700 mob, without any evidence of their direct or indirect participation in the act of arson, can’t fasten them with the attraction of the offence of section 149 of RPC, he added.

According to section 149 of the RPC, if an offence is committed by any member of an unlawful assembly in prosecution of a common object, every person then forming part of that assembly is guilty of that offence.

The court rejected the prosecution plea that it could not do roving inquiry at the stage of filing of challan, saying that it is “not to act as a mere post office to frame the charge at the behest of the 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.

‘Collecting cell phone tower location not sufficient’

Merely collecting the tower location of the cell phone numbers of the accused is not sufficient to construe that they were part of the “unlawful assembly” that turned violent and committed the act of arson, the judge said. The initial common object of the assembly was “not unlawful, but was to protest against the enemy, responsible for the martyrdom of 40 security personnel,’’ the judge added.

Story continues below this ad

“There is no evidence on record that the mob/assembly was equipped with any deadly weapon or any combustible material, to draw an inference that the common object of the assembly, right from its inception, was to do any violence,” Judge Sharma held. “There is no evidence that any unlawful slogans were raised by the mob/unlawful assembly,” he added.

Referring to the prosecution charge of violation of prohibitory order issued by a public servant, the judge said that nothing has been placed on record by the investigating agency to show as to which order was promulgated under Section 144 of the CrPC (Code of Criminal Procedure).

“Once no (prohibition) order is placed on record, how can it be held that any such order has been defied?” the judge asked. “Even if, for the sake of argument, it is assumed that there was any such order issued by the District Magistrate, which prohibited the assembly of five or more persons, then again, for disobedience of the said order, there has to be a complaint from the District Magistrate,” he added. Taking cognisance without such a complaint is barred in terms of section 195 of the CrPC, he added.