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2015 DIGILAW 690 (CAL)

Bharatiya Janata Party v. State of West Bengal

2015-08-18

DIPANKAR DATTA

body2015
JUDGMENT : 1. This writ petition dated August 5, 2015 is at the instance of Bharatiya Janata Party (hereafter BJP) and its office secretary. The petitioners have alleged inaction of the Officer-in-Charge, Jorasanko Police Station (hereafter the said O.C.) in taking steps for registration of an FIR on the basis of complaints dated June 23, 2015 and June 25, 2015 in relation to a perceived hate speech delivered by a Member of Parliament (hereafter the said member) owing allegiance to the political party in power in this State, while addressing a public rally in Basirhat, Dist. 24 Parganas (North) on June 22, 2015. Accordingly, they have prayed for relief as follows: “a) issue a writ and/or order and/or direction in the nature of Mandamus, directing the issue a writ in the nature of Mandamus, transferring the written complaint dated 23rd June 2015 and further information lodged on 25th June 2015 by the petitioner with the Jorasanko Police Station, to the any other investigation agency, for dealing with the same in accordance with law; b) issue a writ and/or order and/or direction in the nature of Mandamus, directing the respondent no. 2 to be personally present and explain why in spite of the order dated 10th April 2014 passed by Hon’ble Justice Dipankar Datta in W.P. No. 965(W) OF 2014 ‘Mira Banerjee & Anr. v. The State of West Bengal & Ors.’ being duly communicated to the respondent no. 2 there has been a ‘Wilful Disobedience’ of the said order by the respondents; 2. The complaint dated June 23, 2015, copy whereof is available at page 52 of the writ petition, appears to have been lodged by Mr. Kamal Beriwala, Secretary, BJP, West Bengal and National Executive Member, BJP, and received at Jorasanko Police Station on June 23, 2015 at 16.00 hours. It is revealed therefrom that the said member had openly instigated his workers by urging them to gouge out the eyes and to cut off the hands of anyone who wishes to glare at the people of Bengal and that each one of them must be reminded that the people of Bengal have the last word so long the present incumbent holds office as Chief Minister of West Bengal. The complainant felt insecure and threatened by such statement of the said member and, accordingly, requested the said O.C. to treat the complaint as an FIR against the said member. The complainant felt insecure and threatened by such statement of the said member and, accordingly, requested the said O.C. to treat the complaint as an FIR against the said member. 3. The aforesaid complaint was followed by a complaint dated June 25, 2015 of Mr. Ashim Sarkar, General Secretary, BJP, West Bengal, titled “additional written information of cognizable offences committed by …..”. In continuation of the earlier complaint, Mr. Sarkar sought to provide instances of multitude of hate speeches delivered by political leaders owing allegiance to the ruling party in the State. Apprehending serious trouble and chaos insofar as law and order situation is concerned, the said O.C. was requested to investigate the complaint upon treating it as an FIR in terms of the decision of the Supreme Court reported in (2014) 2 SCC 1 (Lalita Kumari v. Government of Uttar Predesh & ors.). 4. Mr. Edulji, learned advocate for the petitioners, while referring to various provisions of the Code of Criminal Procedure (hereafter the Cr.P.C.) as well as the decisions in Lalita Kumari (supra) and in W.P. 965(W) of 2014 (Mira Banerjee & Anr. v. The State of West Bengal & Ors.) dated April 10, 2014 rendered by this Bench, contended that section 115 of the Indian Penal Code (hereafter the IPC) was attracted (abetment to commit offence, although the offence may not have been committed) and there being disclosure of a cognizable offence, it was the statutory duty of the said O.C. to register an FIR as the preliminary step for proceeding with investigation as ordained by the Cr.P.C. 5. Mr. Edulji also relied on the decision of the Supreme Court reported in AIR 1967 SC 553 (Jamuna Singh v. State of Bihar), for the proposition that section 115 of the IPC stands on its own feet even though nothing might have happened in consequence of abetment. 6. The writ petition was opposed by Mr. Majumder, learned Government Pleader. He first invited the attention of this Bench to a complaint dated June 23, 2015 lodged by Mr. Subhrajit Bhattacharya, District Secretary, BJP, 24 Parganas (North), addressed to the Inspector-in-Charge, Basirhat Police Station (hereafter the said inspector). Referring to the same speech delivered by the said member, it was urged by the complainant that an FIR ought to be registered against the former under sections 504/506/500, IPC. Since the complaint of Mr. Subhrajit Bhattacharya, District Secretary, BJP, 24 Parganas (North), addressed to the Inspector-in-Charge, Basirhat Police Station (hereafter the said inspector). Referring to the same speech delivered by the said member, it was urged by the complainant that an FIR ought to be registered against the former under sections 504/506/500, IPC. Since the complaint of Mr. Bhattacharya disclosed non-cognizable offences and the said inspector being disabled to conduct investigation without an order of the relevant magistrate, an entry was made in the general diary [Basirhat Police Station G.D. Entry No. 1653 dated June 23, 2015]; that, subsequently, several other complaints containing similar allegations having been received, further G.D. entries were made on June 24, June 26 and June 27, 2015 culminating in submission of a prayer before the Additional Chief Judicial Magistrate, Basirhat (hereafter the ACJM) for permission to enquire under section 155, Cr.P.C. in relation thereto; that, on July 15, 2015, upon consideration of the prayer of the police, the ACJM granted necessary permission for enquiry under section 155, Cr.P.C. and called for a report on July 31, 2015; that, a report was received from the investigating officer on July 21, 2015, which was directed to be kept with the record by the ACJM and for being put up on July 31, 2015, as directed earlier; and that, on perusal of the report the ACJM by an order dated July 31, 2015 accepted the same and directed the same to be kept with the record. It was contended by Mr. Majumder that if at all the petitioners are aggrieved by such order of the ACJM dated July 31, 2015, their remedy lies elsewhere and not before the writ court. 7. Secondly, it was contended by Mr. Majumder that a writ petition [W.P. 15268(W) of 2015 : Biplab Kumar Chowdhury v. State of West Bengal & ors.] had been moved before this Bench by a so-called public spirited citizen claiming that by delivering the hate speech, the said member had committed offences punishable under sections 115/141/153A/503/504/505 and 506, IPC and that direction ought to be given to the said inspector to register an FIR on the basis of the complaint dated June 25, 2015. The said writ petition had been considered by this Bench on July 22, 2015 and Mr. Majumder’s submission that “the matter had been referred to the learned Magistrate having jurisdiction” was recorded. The said writ petition had been considered by this Bench on July 22, 2015 and Mr. Majumder’s submission that “the matter had been referred to the learned Magistrate having jurisdiction” was recorded. He further pointed out that having regard to the fact that the police was not found to be completely inactive and further having regard to the observation that whether or not the speech delivered by the said member amounts to a hate speech would require thorough examination, this Bench had refused to entertain the writ petition and had granted liberty to the said petitioner to pursue his remedy provided by the Cr.P.C. Relying on such decision, he reiterated his submission that the petitioners ought to pursue their remedy under the Cr.P.C. 8. Finally, Mr. Majumder contended that the writ petition should be dismissed for suppression of material facts by the petitioners. Referring to various paragraphs of the writ petition, he sought to demonstrate that although it is the specific claim of the petitioners that the said O.C. had remained inactive despite receipt of the complaints dated June 23, 2015 and June 25, 2015 disclosing commission of cognizable offence by the said member, they had deliberately withheld an important fact. According to him, the copy document at page 52 of the writ petition being the written complaint of Mr. Beriwala is, in fact, a tampered document. Developing his argument on the point, he produced an extract from the general diary maintained at Jorasanko Police Station bearing no. 1763 recorded at 16:25 hours on June 23, 2015. It was recorded therein as follows: “One Kamal Beriwala, S/o-G.D. Beriwala of 167, C.R.Avenue Kol-07, came to the P.S. and submitted a letter against Shri Abhishek Banerjee of A.I.T.M.C. for giving a public speech at Basirhat on 22.06.2015. he alleged that Shri Abhishek Banerjee gave out threats at the said public meeting. As the allegation is non-cognizable in nature and as the place of occurrence falls within the jurisdiction of Basirhat P.S., Shri Kamal Beriwala was requested to submit the complaint at Basirhat or concerned P.S.” 9. Mr. Majumder submitted that an endorsement of Jorasanko Police Station G.D. Entry No. 1763 dated June 23, 2015 was duly made on the receipted copy together with the seal of Jorasanko Police Station, which had been effaced while making photocopy of the receipted complaint for being annexed to the writ petition. Mr. Majumder submitted that an endorsement of Jorasanko Police Station G.D. Entry No. 1763 dated June 23, 2015 was duly made on the receipted copy together with the seal of Jorasanko Police Station, which had been effaced while making photocopy of the receipted complaint for being annexed to the writ petition. He urged the Bench to call upon Mr. Edulji to produce the receipted copy. Mr. Majumder confidently submitted that the receipted copy, in original, would definitely bear the endorsement of the G.D. entry. 10. It was also submitted by Mr. Majumder that the complaint lodged before the said inspector at Basirhat by the other wing of the first petitioner had also been suppressed in the writ petition and there being an attempt to mislead this Court, the writ petition ought to be summarily dismissed. 11. Hearing was, accordingly, adjourned for the day and Mr. Edulji was called upon to produce the receipted copy, in original, on the following day. 12. The receipted copy, in original, was produced by Mr. Edulji before the Bench and on perusal thereof, the submission of Mr. Majumder, made on the earlier day, was found to be absolutely correct. Finding himself on soft soil, Mr. Edulji sought to explain and justify as to why and how copy of the receipted copy in original was not annexed to the writ petition. 13. Assuming that a mistake on the part of someone as submitted by Mr. Edulji resulted in omission to annex the copy of the original receipted copy of the complaint in its entirety bearing the endorsement of the G.D. entry and the seal, no explanation worth the name has been advanced as to why in the body of the writ petition the facts that the general diary entry bearing no. 1763 having been made by Jorasanko Police Station and lodging of the complaint at Basirhat Police Station by another wing of the first petitioner were not disclosed and by painting a totally contrary picture of culpable inaction of the said O.C. referring to the decisions in Lalita Kumari (supra) and Mira Banerjee (supra), an attempt to mislead the Court was made. 14. 14. To err is human, but it has to be remembered that this is not a writ petition at the instance of a stranger or a busybody attempting to gain cheap popularity by espousing a pretended public cause; it is inter alia at the instance of a political party which, in the parliamentary elections last conducted in the country, was successful in emerging as the party having the maximum number of representatives in the Lok Sabha and is also part of the ruling dispensation at the Centre. Invocation of extra-ordinary writ jurisdiction of a high court by a political party of the stature of the first petitioner, not being unmindful of the influence that it wields on the common people, pertaining to a sensitive issue in such a disorganized manner and with such a casual approach not only merits to be deprecated but the time is now ripe, when the Courts in India are faced with a deluge of litigation from aggrieved persons seeking justice and the Courts are hard pressed in listening to the grievance of each one of them, to send a strong signal that the Courts are not the place for settling political scores and that wastage of judicial time, though nominal in measure, would not be tolerated. This Bench has no hesitation to hold that not only should this writ petition be not entertained in view of the developments post the decision in Biplab Kumar Chowdhury (supra) but the petitioners ought to suffer exemplary costs so as to remind the first petitioner that howsoever strong and mighty it is in the political scene, it must respect the laws of the country while seeking to invoke the extraordinary jurisdiction of the Court and not suppress facts or produce a tampered document to suit its end. 15. The writ petition, accordingly, stands dismissed. The petitioners shall pay, as costs, Rs. 5,00,000/- each to the West Bengal Legal Services Authority and the Calcutta High Court Legal Services Committee within a month from date, failing which the State shall be entitled to recover the costs from the petitioners in the manner mandated by law. Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.