The Lower Court had ordered the Dispur Police Station to register a case against the CM based on Complaints from Congress MP MP Abdul Khaleque.
Khaleque had accused Sarma of making provocative remarks on the eviction drive in Dholpur of Sipajhar in Darang district in December last year.
Earlier, Khaleque approached Dispur police to register an FIR against him, however, they rejected it.
He later moved the court of the Sub Divisional Judicial Magistrate (SDJM) on February 27, alleging police inaction after the Dispur police station did not register an FIR.
On March 5, the Sub-Divisional Judicial Magistrate, vide the impugned order, allowed the prayer made by Khaleque (respondent No. 1) and directed the Officer-In-Charge of Dispur Police Station to register a case on the allegations mentioned in the complaint and to investigate into it fairly and submit the final report at the earliest.
Arguments
Chief Minister Himmat Biswa Sarma had filed a petition under section 482 of CrPC against the order of 05.03.2022 of the Lower court. The petition sought quashing of the lower court's order.
Advocate General Devjit Saikia for the State of Assam questioned the propriety of the impugned order.
He submitted that the entire allegation in the FIR is based on the speech dated 10.12.2021 at Morigaon in which the respondent No. 2/Dr. Himanta Biswa Sarma allegedly made communally sensitive statements. It has been alleged in the FIR that Sarma had given wanton provocation to people to commit act of rioting against a particular community of the State. It is also alleged in the FIR that by his such provocative speech, aforesaid, he intended to promote enemity, hatred and illwill towards the muslim population of Assam.
Referring to the transcripted Assamese version as well as the translated English version of the speech, the AG submitted that there is not a single word in the statement in respect of any particular community, not to speak of Muslim community to create the feeling of enmity, hatred, illwill, etc. as well as to provoke the people for act of rioting against any community.
It was further submitted that the court below, while passing the order impugned in this application, although stated that it had gone through the documents annexed with the application under Section 156(3) of the Cr.PC yet, evidently, the transcription of the speech was not there with the complaint which is the foundation of the complaint itself, and therefore, there was no scope for the Magistrate to examine the speech to take a view on the matter. The cassette containing Sarma's speech as placed before the court below by Khaleque apparently was not gone through by the court below and inspite of that the order reflects that the court below has gone through the all the documents, which probably included the cassette also.
The AG further also submitted that on receipt of the FIR dated 29.12.2021, the same was entered in the General Diary and a preliminary enquiry was made as per the provisions of Section 157(1)(b) of the Cr.PC, and finding no material to initiate an investigation, the matter was closed with intimation to the higher ups in the Police Department.
He also submitted that the fact that a preliminary investigation was conducted under Section 157(1)(b) of the Cr.PC was not in the notice of the learned court below resulting in passing of the impugned order.
The facts narrated in the application under Section 156(3) of the Cr.PC upon which the impugned order was passed by the court below did not contain any statement as to the action taken by the Investigating Police Officer under Section 157(1)(b) of the Cr.PC. Therefore, it was submitted that the impugned order was passed on incomplete information.
It was the further submitted, referring to the decision of the Supreme Court in the case of Bilal Ahmed Kaloo vs. State of A.P. reported in (1997) 7 SCC 431 that applying the ratio laid down therein the offences alleged in the instant case are not attracted against Sarma and therefore, there is no question of registration of a case on the basis of the facts alleged.
Sarma's controversial speech
During an event on Swahid Divas (Martyrs' Day) in Morigaon on 10 December, Sarma allegedly described the eviction drive in Dholpur in September as "an act of revenge" for the incidents of 1983.
The purpose of the eviction drive was to remove encroachers to free up government land for "landless indigenous communities" for an agricultural project.
Violence also took place during this eviction drive, in which two people, including a 12-year-old child, were dead.
Case Title: The State of Assam VS. Abdul Khaleque
Coram: Justice Hitesh Kumar Sarma
