Dubey, a member of the Bharatiya Janata Party (BJP), represents the Godda constituency in Jharkhand.

Justice Sanjay Kumar Dwivedi, "The public representative is entitled to raise a legitimate public issue and for that, a peaceful demonstration is going on everywhere. The petitioner is not indulged in any act of violence."

"Coming to the facts of the present case, without appreciating the evidence, the contents of the F.I.R as well as the legal issues which has been dealt hereinabove, the case of the petitioner comes within the guided principle of discharge and in view of that the facts, reasons and analysis, the Court finds that the petitioner is fit to be discharged in the case in hand," Justice Dwivedi added."

Dubey had filed the petition for quashing the order dated 06.06.2018 passed by the Sessions Judge, Godda, in a Criminal Revision whereby the said petition was dismissed and the Court had affirmed the order dated 27.07.2017 passed by the Judicial Magistrate, First Class, Godda in connection with a case pending in the court of the Judicial Magistrate, First Class, Godda.

The F.I.R was registered under section 143, 186, 283, 290, 291 and 353 of the Indian Penal Code as per the written report of the A.S.I. stating that on 04.09.2009 at about 5 PM, Dubey held demonstrations and blocked the road near the Primary Health Centre, Poraiyahat. It was further alleged in the report that Dubey along with his associates did not let the patrol vehicle of the complainant pass and blocked the said road and caused jam on both sides of the road.

It was also alleged that Dubey along with other leaders of the Bharatiya Janata Party did not pay heed to the requests of the complainant to remove the jam and started giving speeches on the road and that even when the SDO and SDPO reached the spot and requested the Petitioner and his associates to remove the jam, they did not pay any heed to such requests and further became aggressive. And finally, at the request of Dubey, the jam was removed at about 11.45 p.m.

Advocate Prashant Pallava appearing on behalf of Dubey contended that there was no overt act and the petitioner himself had asked the demonstrators to leave the place which had come in the First Information Report. He further contended that there was no act of threatening any person or causing any injury and in view of that, section 353 I.P.C is certainly not attracted. He further submits that the entire allegations are made on the ground that the demonstration was going on by the petitioner at that time who happened to be Member of Parliament of that area. He submits that for a peaceful demonstration is a fundamental right under Article 19 of the Constitution of India.

Per contra, Advocate Pankaj Kumar, the Public Prosecutor appearing on behalf of the respondent State submitted that the order of the trial court as well as the revisional court were well reasoned and well discussed orders. He further submitted that the materials were there and prima facie case was made out, and in view of that, the court had rightly rejected the petition of discharge.

Looking at the background of the case, the Court remarked, “if peaceful demonstration in a democratic country, like India was going on, on the basis of said F.I.R a sitting Member of Parliament and others can be prosecuted or not? The prosecution is required to be on the facts and circumstances of each case.”

“Had it been a case that any overt act has been made by any of the member, certainly the prosecution would have been maintained. However, if a peaceful demonstration was going on, certainly certain protection is there of a citizen of this country under Article 19 of the Constitution of India,” the Court added.

The Court asserted that Article 19(1)(a) of the Constitution of India confers the right to freedom of speech to the citizens of this country and in view of this protection, a citizen is entitled to raise slogans and peaceful demonstration without using the offensive language.

The Court further asserted that Article 19(1)(b) of the Constitution of India confers the right to assemble and thus, an assembly can be peaceful. Article 19(1)(d) of the Constitution of India is for movement freely throughout the territory.

In the case in hand, the Court observed there was no allegation of any overt act either by the petitioner or by any person who was present at the site of demonstration and in that circumstances, the Court said whether section 353 I.P.C can be maintained or not that has been answered by the Supreme Court in the case of Manik Taneja v. State of Karnataka [2014 SCC OnLine Kar 4237].

The Court observed, “In view of application of the said section, there must be an act of threatening to another person or causing injury to the person or damage to property of the person threatened. Coming to the facts of the present case, in the entire contents of the F.I.R there is no such allegation of criminal force or assault to the public servant and in view of that section 353 I.P.C is not attracted in the case in hand.”

Accordingly, the Court set aside the order passed by the Sessions Judge, Godda, and discharged Dubey from the case.

Appearance:

For the Petitioner :- Mr. Prashant Pallava, Advocate, Mr. Parth Jalan, Advocate

For Respondent State :- Mr. Pankaj Kumar, Public Prosecutor

Case No.: Cr.M.P. No. 2113 of 2018

Case Title: Nishikant Dubey (Member of Parliament) vs State of Jharkhand

LL Citation: 2024 LiveLaw (Jha) 27

Click Here To Read / Download Judgement