Gauhati High Court Sets Aside Lower Court Order Directing Police To Register FIR Against CM Himanta Biswa For 'Inflammatory Speech'

The Gauhati High Court on Thursday set aside a Magistrate Court's order directing Assam Police to register a case under Sections 153 and 153A of IPC against the incumbent Chief Minister, Himanta Biswa Sarma, on the basis of a complaint made by Congress MP Abdul Khaleque, alleging that the Sarma has made communally motivated statements in December, 2021 at Marigaon.

The Single bench of Justice Ajit Borthakur observed that the whole text of the speech in question did not bear any word or sentence which can be termed as communally inflammatory speech attracting any penal cognizable offence.

“In the case in hand, a comparative approach to the allegations made in the F.I.R. vide Annexure-1, Complaint Petition vide Annexure-4 and the entire speech in vernacular delivered at a public meeting at Morigaon by the proforma respondent No. 2 [Sarma] vide Annexure-6, which is accepted without objection from the side of the respondent No.1, it transpires that there was no any elements constituting the offences under Sections 153/153-A of the IPC or any other cognizable penal offence,” the bench said.

Khaleque had lodged an FIR against Sarma on December 29, 2021 under Sections 153 and 153A of IPC alleging that he made malignant and provocative utterances during a speech at Marigaon, intending to cause disharmony or feelings of enmity, hatred or ill-will towards the Muslim population of Assam by calling eviction exercise at Gorukhuti as a ‘revenge’ for the incidents of 1983.

On receipt of the FIR, the Police conducted a preliminary enquiry and found that there was no sufficient ground for entering into an investigation.

Khaleque then submitted an application under Section 154(3) CrPC before the Deputy Commissioner of Police. In February 2022, he filed a complaint petition before the jurisdictional Magistrate under Section 156(3) CrPC for issuance of directions to the Police to register an FIR and initiate investigation against Sarma.

The Magistrate, vide order dated March 5, 2022, directed the Officer-in-Charge of Dispur Police Station to register a case on the allegations mentioned in the complaint and investigate the matter fairly.

The Advocate General of Assam, D. Saikia appearing for the State submitted that the compact disc containing the recorded video of the alleged speech in vernacular language does not disclose any cognizable offence, when verified with the contents of the whole text of the speech in question.

It was further submitted that the complaint, if taken in its face value and read in its entirety, even then no offence under any of the provisions of the IPC has been disclosed against Sarma and as Khaleque has not challenged the translated printed version of the speech, the same may be accepted as true and undisputed.

It was argued that the allegations made in the Complaint were nothing but a manipulation of the actual speech and the undisputed speech clearly establish that there was no element of any cognizable offence.

The Public Prosecutor submitted that the speech in question did not have any reference to any community, rather it was addressed to the humble people of the state in general to boost up the harmony of the social fabric stressing on their glorious history and sacrifice made by their predecessors etc.

Padmini Baruah, the Counsel appearing for Sarma submitted that the text of the speech in question did not in its face value satisfy the ingredients of the offences under Sections 153 and 153A of the IPC or any other penal cognizable offence.

S. Nawaz, the Counsel appearing for Abdul Khaleque submitted that the petitioners have totally misread the law on preliminary enquiry for the reason that in Lalita Kumari v. State of U.P. & Ors. (2014), it has been clearly stated that it is mandatory to register an FIR under Section 154 CrPC if the same discloses commission of a cognizable offence, which pre-condition is satisfied in the instant case and as such, there was no scope for preliminary inquiry by the police without registration of the FIR.

The Court noted that the requirements of Section 154 CrPC is only that it must disclose the commission of a cognizable offence to set the investigating machinery into action.

The Court observed:

“In the instant case, it appears that the informant neither reproduced the actual public speech in verbatim nor some selective sentences thereof in verbatim stated by the proforma respondent No. 2 purportedly at a public meeting at Morigaon, in his F.I.R. except quoting one word ‘revenge’ for the incidents of 1983 in the context reference to eviction drive undertaken by the district administration at Gorukhuti in Morigaon district of Assam. The said F.I.R. was not supported by any annexure of printed or electronic transcript of the public speech allegedly delivered by the proforma respondent No.2, who is the Head of the Government of the state.”

It was further observed by the Court that a petition under Section 156(3) of CrPC cannot strictly be construed as a complaint in terms of Section 2(d) CrPC warranting registration of a complaint case.

“On reading of the allegations made in the aforesaid Complaint Petition and in the F.I.R., it is crystal clear that each one contains apparently different narration of facts overlapping each other clouding the multifarious allegations generated therein, which cannot be construed to have disclosed any cognizable offence to the police, requiring to be mandatorily registered,” the Court said.

The Court remarked that while passing the aforesaid impugned order, the Magistrate committed an error of judgment on the documents placed on record and passed the impugned erroneous order without proper consideration of the allegations made in the FIR/ complaint petition under Section 156(3) CrPC and its accompanying most vital electronic document recording the entire speech in question.

It was further noted that the Magistrate omitted to give an opportunity of hearing on the petition to Sarma. The Court noted:

“…the learned Magistrate seems to have hurriedly passed the impugned order on 05.03.2022 on the same day of receipt of the petition on transfer to his Court for disposal, after hearing the complainant side only, which certainly occasioned gross failure of justice and abuse of the process of the Court.”

Case Title: The State of Assam & Anr. v. Abdul Khaleque & Dr. Himanta Biswa Sarma

Citation: 2023 LiveLaw (Gau) 79

Coram: Justice Ajit Borthakur

Click Here to Read/Download Judgment