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2023 DIGILAW 1428 (CAL)

Kailash Vijayvargiya v. State of West Bengal

2023-08-22

BIBHAS RANJAN DE

body2023
JUDGMENT : Bibhas Ranjan De, J. 1. The lis involved in the two Criminal Revision Applications. Both the cases qua revision applications are marginally same, therefore, they were being heard and disposed of by this common judgement. CRR 1 of 2021 2. On 07.12.2020, Anirban Bhattacharya, Officer in-charge of New Jalpaiguri Police Station lodged a written complaint which was registered under FIR No. 1426 of 2020 under Sections 147,149,353,427 of the Indian Penal Code read with Section 9 of the West Bengal Maintenance of Public Order Act, 1972 (hereinafter referred to as WBMPO Act), read with Section 3 of the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as PDPP Act), Corresponding to GR Case no. 5320 of 2020, alleging inter alia, Bharatiya Janata Yuva Morcha (hereinafter referred to as B.J.Y.M.) youth wing of Bharatiya Janata Party (hereinafter referred to as B.J.P.) tried to take control of ‘Uttarkanya’, the State Secretariat to forcibly hoist flag of BJP to propel the Government to meet their demands. ‘Uttarkanya’ being a high security zone and covered under Section 144 of the Code of Criminal Procedure (hereinafter referred to as CrPC) (vide order dated 03.11.2020) with effect from 09.11.2020 to 07.01.2021 as ordered by Commissioner of Police, Siliguri Police Commissionerate (hereinafter referred to as S.P.C.) to avoid any form of physical confrontation with the workers of BJYM there was ample amount of preparation such as traffic barriers strengthened with iron rods and wooden frames to pacify the mob and not allowing cross of the said boundary. At about 11 a.m., the workers of BJYM started to assemble at Noukaghat More. At about 12.15. p.m., leaders of BJP started delivering speeches to the mob with the intention to provoke them so as to encourage them to resort to violence. At about 2.15.p.m., the mob proceeded towards Tinbatti More where they were restrained by Senior Police Personnel who requested them to go back. Under the instruction of senior leaders the mob turned unruly and a section of them started stone pelting and tried to break barricades. Police in retaliation used water cannons to disperse the mob. They got dispersed initially but came back again to attack the police who then charged the mob with tear gas shells and at around 3.45 p.m., the mob got dispersed. Police in retaliation used water cannons to disperse the mob. They got dispersed initially but came back again to attack the police who then charged the mob with tear gas shells and at around 3.45 p.m., the mob got dispersed. As a sequel, the complaint was lodged against 14 persons by name and 3000 others including the petitioners herein. CRR 2 of 2021 3. On 07.12.2020, Pareek Barman, SI of Police, SPC lodged a written complaint which was registered under FIR No. 1425 of 2020 under Section 147, 148, 149, 427, 307, 353, 332, 333,435, of the Indian Penal Code read with Section 9 of the West Bengal Maintenance of Public Order Act, 1972 (hereinafter referred to as WBMPO Act), read with Section 3 of Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as PDPP Act) read with Section 25 & 27 of the Arms Act. Corresponding to GR Case no. 5319 of 2020, alleging inter alia, and tried to take control of ‘Uttarkanya’, State Secretariat to forcibly hoist flag of BJP to propel the Government to meet their demands. ‘Uttarkanya’ being a high security zone and covered under Section 144 of the Code of Criminal Procedure (hereinafter referred to as CrPC) (vide order dated 03.11.2020) with effect from 09.11.2020 to 07.1.2021 as ordered by Commissioner of Police, Siliguri Police Commissionerate to avoid any form of physical confrontation with the workers of BJYM there was ample amount of preparation such as traffic barriers strengthened with iron rods and wooden frames to pacify the mob and not allowing cross of the said boundary. At about 11 a.m., the workers of BJYM started to assemble at Noukaghat More. At about 12.15.p.m., leaders of BJP started delivering speeches to the mob with the intention to provoke them so as to encourage them to resort to violence. At about 2.15 p.m., the mob proceeded towards Murder More where they were restrained by Senior Police Personnel who requested the mob to re-direct their rally and requested them to disperse. But, the leaders paid no heed to the warranting issued by the Police Authorities and started moving forward, thereby the supporters became aggressive and started to break barricades. Finding no other alternative Nagendra Kalicotay ACP (SB) SPC, the Special Executive Magistrate declared the mob to be an unlawful assembly. But, the leaders paid no heed to the warranting issued by the Police Authorities and started moving forward, thereby the supporters became aggressive and started to break barricades. Finding no other alternative Nagendra Kalicotay ACP (SB) SPC, the Special Executive Magistrate declared the mob to be an unlawful assembly. It was further alleged that the said mob turned unruly and a section of them started attacking the police personnel with lathi, petrol, bombs and fire arms with a view to break the barricade. As a result, police officials sustained injuries. The mob also destroyed the water cannons deployed at the Murder More. Finding no other alternative police authorities upon direction of Special Executive Magistrate used non-lethal weapons on the mob and managed to disperse the mob at about 4.45 p.m. and the injured Police Personnel were sent to Hospital for medical treatment. 4. Petitioner no. 1& 2 qua CRR no. 1 of 2021 has prayed for quashing of the proceedings of New Jalpaiguri Police Station Case no. 1426 of 2020 dated 07.12.2020 corresponding to GR Case No.5320 of 2020 and petitioner qua CRR no. 2 of 2021 also prayed for quashing of the proceedings of New Jalpaiguri Police Station case no. 1425 of 2020 dated 07.12.2020 corresponding to GR Case no. 5319 of 2020 and petitioners in respect of both the revision applications alleged that the allegations leveled against them were all false and fabricated due to political rivalry. On the contrary, petitioners were victim of brutal attacks by unruly police administration. Argument advanced:- 5. Ld. Advocate, Mr. Rajdeep Mazumder appearing on behalf of the petitioners of both the revision applications submitted before this Court that any order under Section 144 of CrPC cannot be promulgated against any political rally and in connection with the incident alleged 4 separate FIRs were lodged in violation of the principle laid down in T.T. Antony Vs. State of Kerala reported in (2001) 6 SCC 181 it has been further submitted that petitioners were to exercise the fundamental right to protest to express decent and for which they were made accused of criminal cases and continuation of the instant proceedings would result in a gross abuse of process of court. In support of his contention Mr. Mazumder relied on a case of Ramlila Maidan Incident reported in (2012) 5 SCC 1 and also the case of State of Haryana Vs. In support of his contention Mr. Mazumder relied on a case of Ramlila Maidan Incident reported in (2012) 5 SCC 1 and also the case of State of Haryana Vs. Bhajan Lal reported in AIR 1992 SC 604 . 6. With regard to the principle laid down in T.T. Antony’s case (supra), I find that the facts dealt with by the Hon’ble Apex Court regarding subsequent FIR for an incident alleged to have been occurred 3 years back, is not at all identical with the facts and circumstances of the instant case. 7. Per Contra, Ld. Advocate, Mr. Aditi Sankar Chakraborty, appearing on behalf of the State has stated that initiation of criminal proceedings against the petitioners has been done on grounds of sufficient evidence collected during investigation in connection with New Jalpaiguri Police Station Case No. 1426 of 2020 dated 07.12.2020 and in connection with New Jalpaiguri Police Station Case No.1425 of 2020 dated 07.12.2020 where petitioners of the revision applications are involved. 8. Admittedly, on 07.12.2020 3000 supporters under the leadership of 22 persons including the petitioners took out a political agitation programme under the name ‘Uttarkanya Avijan’. 9. From the case diary it is found that in connection with New Jalpaiguri Police Station Case No. 1426 of 2020, 14 leaders including the petitioners of revision application no. CRR 1 of. 2021 along with 3000 supporters of BJYM proceeded from Noukaghat More to Tinbatti More where police restrained them with the barricades but those agitators did not pay any heed to that barricade and forwarded towards ‘Uttarkanya’. One Nagendra Kalikotay, A.C.P. (Special Branch) S.P.C. declared those supporters of BJYM as members of an unlawful assembly on the basis of powers vested upon him as Special Executive Magistrate. 10. It is, further, seen from the case diary on the same day that 3000 supporters under the leadership of 8 persons including the petitioner in connection with New Jalpaiguri Police Station Case No. 1425 of 2020 and revision application no. CRR 2 of 2021, proceeded towards Murder More where police restrained them with the barricades but again those agitators did not pay any heed to that barricade and forwarded towards ‘Uttarkanya’. One Nagendra Kalikotay, A.C.P. (Special Branch) S.P.C. also declared those supporters of BJYM as members of an unlawful assembly on the basis of powers vested upon him as Special Executive Magistrate. 11. One Nagendra Kalikotay, A.C.P. (Special Branch) S.P.C. also declared those supporters of BJYM as members of an unlawful assembly on the basis of powers vested upon him as Special Executive Magistrate. 11. In this facts and circumstances, it is relevant to reproduce the observation of the Hon’ble Apex Court in Ramlila Maidan Incident (supra) in paragraph 245 :- “245. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquillity, as it may disturb the social order. This delegated power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them.” 12. From the ratio of the decision mentioned above, I find that assembly and peaceful demonstration cannot be said to be an unlawful assembly. In this case, from the case diary, I find that after restraining the agitators at Murder More and Tinbatti More there was tussle between BJYM supporters and huge number of police personnel assembled over there and police personnel also used all sorts of non-lethal weapons upon the BJYM supporters. At the same time, BJYM supporters also pelted brick-bats upon the police officials. Evidence collected during investigation does not indicate any particular person or persons pelting stones/brick-bats upon the police officials. 13. Only allegation against the petitioners in respect of Police Station case no. 1426 of 2020 is that they were present on the spot along with other 12 leaders and all of them were uttering provocative words thereby inciting the BJYM supporters to attack the police. 13. Only allegation against the petitioners in respect of Police Station case no. 1426 of 2020 is that they were present on the spot along with other 12 leaders and all of them were uttering provocative words thereby inciting the BJYM supporters to attack the police. But, it is absurd to presume that all the leaders were provocating the 3000 of BJYM supporters without any public address system (Microphone) as well as without using any elevated platform. Nowhere, from the case diary, it appears that either of the petitioner in connection with New Jalpaiguri Police Station Case No. 1426 of 2020 and 1425 of 2020 uttered any provocative word towards BJYM supporters. There is also nothing in the case diary regarding who among the BJYM supporters pelted stone or used criminal force upon the police officials, let alone the petitioners in connection with both the police stations cases mentioned here in above. It is also not alleged in the case diary that the programme of ‘Uttarkanya Avijan’ was undertaken without any prior permission of the Police Authority, had it not been so Police Authority would have no opportunity to depute huge number of high officials at strategic positions of the surrounding area by putting all sorts of barricades and also by way of deployment of water cannons, tear gas, Pallet guns etc. Need not to mention that, one of the supporter, Ulen Roy, died of firing on the same day for which New Jalpaiguri Police Station Case No. 1427 of 2020 dated 07.12.2020 was started under Section 302 of the Indian Penal Code against unknown accused. 14. It is also pertinent to mention here that another New Jalpaiguri Police Station Case No. 1424 of 2020 was initiated on a complaint alleging inter alia that the said mob vandalized one police traffic guard office at Nouka Ghat More at the time of returning from Tinbatti More after being restrained by the Police. In that case FRT (FRMF) was submitted as nobody was identified for the offence alleged. 15. How come no evidence be collected by the investigating authority to validate the allegations against the said persons allegedly involved in the above mentioned case (1424 of 2020). 16. How come nobody get identified and FRT (FRMF) gets issued in the case (1424/2020). Isn’t it a failure at the end of the Police to find the ends of justice? 15. How come no evidence be collected by the investigating authority to validate the allegations against the said persons allegedly involved in the above mentioned case (1424 of 2020). 16. How come nobody get identified and FRT (FRMF) gets issued in the case (1424/2020). Isn’t it a failure at the end of the Police to find the ends of justice? If so then how can the petitioners be liable for a matter which is directly linked with another matter (1426/2020) where the charge sheet submitted against the said petitioners is in shambles. 17. During investigation of New Jalpaiguri Police Station Case No. 1426 of 2020 and 1425 of 2020 nobody was identified for the offence of using criminal force upon the police officials to deter them from discharging their official duty or for damaging the public property. 18. On careful scrutiny of the case diary, I find that petitioners qua New Jalpaiguri Police Station Case No. 1426 of 2020 and 1425 of 2020 were implicated in those cases only for inciting 3000 BJYM supporters for committing the offence alleged in this case. I have already discussed that there is no specific allegation against those petitioners particularly for provoking the BJYM supporters by uttering individual provocative words. In fact, there was an allegation of general provocative words against all the leaders. That apart, there is hardly any public witness to support such allegation. 19. From the alleged facts of the case it is beyond my rational understanding that on which basis the said mob was given a specific figure of 3000 apart from the leaders including the petitioners as there has been no specific mentioning of the method used to calculate the exact figure of agitators by the Police Authority. 20. After analyzing all the crucial aspects, I would like to quash the proceeding as absurdity and malice in the claims of the respondent is clearly violating the means of natural justice which is an inherent right of the said petitioners. 21. Therefore, continuation of those proceedings against the particular petitioners would result in an abuse of process of Court and liable to be set aside. 22. In the aforesaid view of the mater, criminal proceedings in connection with CRR 1 of 2021 and CRR 2 of 2021stand quashed in respect of the petitioners only. 23. Thus, CRR 1 of 2021 and CRR 2 of 2021 stand disposed of. 24. 22. In the aforesaid view of the mater, criminal proceedings in connection with CRR 1 of 2021 and CRR 2 of 2021stand quashed in respect of the petitioners only. 23. Thus, CRR 1 of 2021 and CRR 2 of 2021 stand disposed of. 24. Case diary be returned. 25. Pending applications, if there be any, stand disposed of. 26. All parties to this revisional application shall act on the server copy of this order downloaded from the official website of this Court. 27. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.