Gauhati High Court Refuses To Quash FIR Against Congress Leader Srinivas BV, Warns Senior Lawyer For Comment On Judge’s Imminent Retirement

The bench of Justice Ajit Borthakur said,

“The nature of offences disclosed in the FIR are crime against the society being basically pertaining to outraging of the modesty of woman.”

The petition was filed under Section 482 Cr.P.C. for quashing of the case filed by the former President of the Assam Youth Congress under Sections 509/294/341/352/354/354A (iv)/506 of the IPC read with Section 67 of the Information Technology Act, 2000.

It has been alleged that the accused had been persistently harassing the victim mentally by way of sexist and slang words and also threatening her with dire consequences if she complained the same before the high office bearers of the Youth Congress. It has also been alleged that the alleged victim was also heckled and threatened by the petitioner in a Congress session at Chhattisgarh in February, 2023.

Senior Advocate K.N. Choudhury, representing Srinivas, contended that the allegations made in the FIR are not only vague, fabricated and an afterthought “but are result of political vendetta”. Choudhury contended that if the investigation in the case is allowed to continue, it would be an abuse of the process of law and further, the FIR, apart from being without jurisdiction, does not at all make out the basic ingredients of the penal sections under which the case has been registered by police and as such.

The counsel further contended that criminal proceedings cannot be used as a tactic to create pressure on the accused. He argued that the alleged heckling of the victim took place in Raipur, Chhattisgarh only and hence, the registration of the FIR by Dispur Police Station is not only mala fide but also without jurisdiction.

It was further submitted that a perusal of the FIR does not disclose as to the manner in which the alleged outraging comments were made and more particularly, where such comments were made. He also pointed out that the delay in filing of the FIR by the alleged victim has not been sufficiently explained.

Opposing the petition, Advocate General D. Saikia submitted that law has not specified any limitation or time for lodging FIR and therefore, a delayed FIR in any case cannot operate as fatal.

“The High Court, it is settled in a catena of judgments of the Hon’ble Apex Court, has no jurisdiction to examine the correctness or otherwise veracity of the allegations inasmuch as the same is the subject matter of trial,” Saikia submitted.

AG also submitted that the petition should be dismissed as the petitioner has been repeatedly making efforts to give a political colour to the cognizable allegations of serious nature pertaining to outraging modesty of the victim informant.

The court said that the allegations of commission of cognizable offences, which continued for about 6 months preceding the date of filing the FIR in April, 2023, certainly attract the offences under Sections 509/294 and 506 of the IPC.

It further observed that the alleged heckling and threatening of the victim by the petitioner constitutes the offences which "apparently satisfy" the ingredients of the penal provisions of Sections 352/354/ 354A (iv) of the IPC.

“The alleged victim woman informant against her right was threatened not to go outside the border of Assam to attend any meeting of the party, which prima facie satisfy the ingredients of the offence of criminal restraint punishable under Section 341 of the IPC,” the court said.

“Not only this, she had allegedly received various threatening over electronic means while staying at Guwahati from before and after the aforesaid Raipur incident on 25.02.2023 which also attracts the cognizable offence under Section 67 of the I.T. Act,” it added.

The court observed that the question of applicability of Section 67 of the I.T. Act in view of Section 77 of the said Act being a question of facts and law can only be considered during trial, if charge-sheet is submitted after completion of investigation in the case.

On the question of jurisdiction, the court said, "It may be mentioned that normally, Sections 177 and 178 Cr.P.C. determine the place of inquiry or trial of offence which can appropriately be applied after investigation is made to some extent by police in the case. So, this Court is of the prima facie opinion that Dispur P.S. has jurisdiction to investigate into the offences allegedly committed by the petitioner at different places viz. at Guwahati and outside of it."

The court further observed that the contents of the FIR show that the victim had complained to the high office bearers of the political party about the petitioner's unbecoming behavior towards her. However, despite waiting for several days, she received no response, it said.

“As the alleged offences were committed physically and electronically, continuously for about 6 months at Raipur and Guwahati immediately preceding the filing of the FIR on 19.04.2023, it cannot be said that the FIR was lodged on 19.04.2023 after inordinate delay without explanation,” the court observed.

Observing that no interference is called for in the FIR in question in exercise of the extraordinary inherent jurisdiction of the court, the bench dismissed the petition.

Court Censures Senior Lawyer

During the hearing, Senior Advocate K.N. Choudhury submitted if in the backdrop of facts and circumstances which the petitioner has averred, no interim relief as prayed is granted, the court should not grant any interim relief in any other petition under Section 482 Cr.P.C. as there must be only one law in this regard. Choudhury went on to submit that Judges, who are on the verge of retirement, it is noticed, always pass orders in favour of the Government.

"In this regard, referring to a statement of the then Union Minister of Law and Justice for the Government of India, Late Arun Jaitley, made in the parliament, Mr. Choudhury contended that that is why a cooling off period after retirement of a Judge has been advocated. Mr. Choudhury showed some copy of the aforesaid statement of Late Jaitley purportedly published in Live Law from a distance, which this Court, of course, could not read due to distance," the court recorded in the order.

Pertinently, Justice Borthakur retires on November 30 this year. The court further said Choudhury advanced his submission at length on the grounds pleaded by the petitioner "at the height of his voice creating an unwarranted unruly situation breaking the usually everyday calm and quiet congenial Court environment, in presence of a crowd of learned Advocates, seniors and juniors as well as the Court staff present inside it."

While dismissing Srinivas's plea on merits, Justice Borthakur said the Court "in exercise of judicial restraint and keeping in mind the glorious past of 75 years of existence of this esteemed High Court and further, being not relevant in the context of the instant petition," is not inclined to take into consideration of those "avoidable submissions" while deciding the petition.

“A Judge performs his duties with absolute fairness based on record and relevant laws only applicable to the facts and circumstances in each case, without fear or favour or affection or ill-will,” the court said.

Justice Borthakur further said that the court hopes and trusts that "good conscience shall prevail upon Mr. Choudhury", who is "widely assumed to be a legal acumen".

"This Court is, however, unfortunately compelled to record its displeasure and reserves the right for reference in future in the event of recurrence of such avoidable embarrassing situation in the Court," the bench said.

The court forwarded a copy of the order to the Registrar General of the High Court "for favour of placing before Hon’ble the Chief Justice for information and to the Registrar (Vigilance) of this High Court for record so far paragraph No. 29 of this order is concerned."

Case Title: Srinivas B.V. v.State of Assam

Citation: 2023 LiveLaw (Gau) 56

Advocate for the Petitioner : Mr. K N Choudhary

Advocate for the Respondent : PP, Assam

Click Here To Read Judgment