Skip to content Skip to navigation

Case against CM Himanta Biswa Sharma

Sub-Divisional Judicial Magistrate-1 (SDJM 1) Kamrup (M) has directed Dispur police to register a case against Chief Minister Himanta Biswa Sarma on the basis of a complaint by MP Abdul Khaleque. Khaleque alleged that the Chief Minister made inflammatory remarks over an eviction drive at Gorukhuti in Darang district. Khaleque  approached the court after the Dispur police station did not register an FIR against Sarma, 

Present: Sri. B. Baruah, AJS, SDJM 1, Kamrup (M) Dated: 05.03.2022

Complainant Abdul Khaleque is absent with steps showing cause vide petition bearing number 3162 and the prayer of the complainant to dispense with his personal presence is allowed and he is also allowed to be represented by his engaged counsel S. A. Borbhuyan for the day as prayed for.

The complainant has come before this Court u/s 156(3) of Cr.P.C. with a prayer to forward his petition to the Officer-in-Charge, Dispur Police Station for registering a case in relation to the offences punishable u/s 153/153A of IPC allegedly committed by Dr.Himanta Biswa Sarma, the incumbent Chief Minister of Assam.

The complainant has submitted an affidavit (Annexure-4) showing compliance of the provisions of Sec 154(1) and sec 154(3), Cr.P.C as mandated under law laid down by the Hon’ble Supreme Court in Priyanka Srivastava Vs State of Uttar Pradesh, (2015) 6 SCC 287.

The complainant has also submitted copies of the ejahar dated 29/12/2021 lodged u/s 154(1) Cr.P.C. filed before the Officer-in-Charge, Dispur Police Station as Annexure 2 and the application u/s 154(3) Cr.P.C. filed before the Deputy Commissioner of Police (East) dated 12/01/2022 as Annexure 3.

I have gone through the documents annexed. Heard the Ld. Counsel for the complainant.

The Ld. Counsel for the complainant has submitted that despite the compliance of sec 154(1) and 154(3) of Cr.P.C., the police has not registered the FIR and as such prayed for passing necessary direction to the police to register the FIR.

I have considered the submission put forward by the Ld. Counsel for the complainant.

It is pertinent to mention here that in Lalita Kumari vs State of Uttar Pradesh, (2014) 2 SCC 1, the Hon’ble Supreme Court of India has unequivocally held that it is mandatory to register an FIR u/s 154 of the

Cr.P.C., if the information discloses the commission of a cognizable offence.

The instant petition u/s 156(3) Cr.P.C. filed by the complainant is in the format of a complaint as per sec 2(d) of Cr.P.C. The complainant alleges that Dr.Himanta Biswa Sarma made inflammatory speech on 10.12.2021 at Morigaon designed to flare up communal passion which intended to disturb the already fragile social and communal fabric of the state. The speech was allegedly circulated via Electronic and Social Media across the State. The extract of the speech delivered by Dr.Himanta Biswa Sarma has been submitted as Annexure 1. Prima facie the petition discloses commission of a cognizable offence.

The speech, it has been alleged, was transmitted electronically across entire Assam and in such a situation, territorial fetters did not exist for the O.C., Dispur P.S. to register the FIR. It was, thus, mandatory for the police to have registered the FIR and investigate the case.

The veracity of the allegations is not something which can be enquired prior to the registration of the FIR. By failing to even register the FIR, it appears that the police has failed in the discharge of its duty.

Hence, this Court is of the considered opinion that it is a fit case to invoke Sec 156(3) of Cr.P.C.

Before proceeding further, an important question, however has come to my mind. Is sanction required even for the purpose of passing a direction under sec 156(3) of Cr.P.C, considering the fact that sanction under sec 196(1) Cr.P.C. is required for prosecution of offence punishable under sec 153A of IPC and sanction under sec 197 of Cr.P.C. would be required for prosecuting the incumbent Chief Minister of a State?

Heard the Ld. Counsel for the complainant on this point.

The Ld. Counsel for the complainant has humbly submitted that the necessity of a sanction whether under sec 196 or 197 of Cr.P.C would become operation only at the stage of cognizance and not at the stage of registration of an FIR.

It is important to mention here that the Hon’ble Supreme Court of India has held in Anil Kumar vs. M.K.Aiyappa, (2013) 10 SCC 705 that the Special Judge/Magistrate cannot refer a matter u/s 156(3) against a

 

public servant without a valid sanction order. This requirement of sanction even for purpose of invoking section 156(3) of Cr.P.C. has since been questioned and the matter has been referred to a larger bench in Manju Surana vs. Sunil Arora &Ors. (2018) 5 SCC 557.

The Ld. Counsel for the complainant has fairly pointed out that this dictum was in the context of necessity of sanction u/s 19 of Prevention of Corruption Act vis a vis commission of offences under the said Act. It does not apply for commission of offences under the Indian Penal Code or in respect of necessity of sanction required under sec 196 and/or Section 197 of Cr.P.C.

The contention of the Ld. Counsel for the complainant finds validation in a decision by a Three Judges Bench of the Hon’ble Supreme Court in Ramdev Food Products Ltd. vs. State of Gujrat, AIR 2015 SC 1742 where the Hon’ble Apex Court has made it crystal clear that the observations in Anil Kumar (supra) apply only to the category of cases mentioned in Para 120.6 in Lalita Kumari (supra). These cases are as follows:

  1. Matrimonial disputes/family disputes.
  2. Commercial offences. (c)Medical Negligence cases.
  1. Corruption cases.
  2. Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the delay.

The case in hand does not fall under any of the aforesaid categories. Law as laid down by the Hon’ble Supreme Court is very clear on this point.

Therefore, I am of the considered opinion that the necessity of  sanction in respect of offences under Section 153, 153A IPC, allegedly committed by the present Chief Minister of Assam, Dr.Himanta Biswa Sarma will not arise at pre-cognizance stage under section 156(3) of Cr.P.C.

After considering all aspects, the prayer under section 156(3) Cr.P.C. is allowed. The O.C. Dispur P.S. is directed to register a case on the allegations mentioned in the complaint and investigate the matter fairly and to submit the Final Form at the earliest.

Office to make necessary arrangements for sending the petition u/s 156(3) Cr.P.C. along with a copy of the instant order to the O.C. Dispur

P.S. for information and compliance.

A copy of the case record be retained for further reference. This case stands disposed with the aforesaid direction.

Add new comment

Random Stories

Z plus security for Sonowal

1 Feb 2017 - 12:34pm | AT News
The Centre is understood to have approved Z plus security for chief minister Sarbananda Sonowal in view of rebel threat to his life. Union home ministry has cleared the proposal a couple of days back...

Ahinsa Yatra arriving in Kokrajhar

21 Mar 2016 - 11:37pm | Hantigiri Narzary
A massive prepraration has got underway to accord warm welcome highness shantidoot Acharya Shri Mahashraman,chief of Jainism  in Kokrajhar,who is entering the state of Assam through Srirampur on...

Resurfacing dissidence in AGP!

30 Sep 2016 - 6:19pm | AT News
Dissidence seems to have started resurfacing in Asom Gana Parishad posing a serious threat to the Sarbananda Sonowal Government. Former Chief Minister Prafulla Kumar Mahanta and his lobby has been...

Railways to connect NE capitals by 2020

26 Feb 2015 - 12:40pm | Abdul Gani
As per the grand plans of the Northeast Frontier Railways for India’s North Eastern region, there are plans to connect all the state capitals of the region by 2020.This was stated by NF Railways...

Other Contents by Author

Guwahati: All Assam Engineers Association (AAEA) appreciates the latest initiative taken by both the Union government in New Delhi and the State Government in Dispur to encourage the use of green fuel in all kinds of automobiles and urges the concerned authorities to launch a public awareness campaign about alternative fuel for the benefit of automobile users across India. It may be mentioned that Union road transport & highways minister Nitin Gadkari has been advocating for ethanol mixed fuel (mostly with patrol/gasoline) for the vehicles. The minister recently asked carmakers across the country to introduce flex-fuel engines on a large scale. He argued that the ethanol mixed patrol...
A webinar on “Career Options After Engineering Degree” was organised by the Department of Mechanical Engineering, Don Bosco College of Engineering and Technology, Assam Don Bosco University on 31st January,2022. The webinar was conducted by renowned career counsellors of the state and Head, Department of Mechanical Engineering, Dr. Buljit Buragohain. Apart from clearing the doubts of the students while choosing the right career path, Dr. Buragohain also responded to all the questions. He gave detailed explanation on how with hard work and dedication, all the engineering branches students can mould a successful career for themselves and also informed them that he is available for career...
Raijor Dal leader and MLA Akhil Gogoi have condemned the police shoot-out incident in Nagaon on Saturday, where one Kirtikamal Bora was injured.  Gogoi demanded suspension of Nagaon SP Gogoi and also urged the government to initiate a judicial probe..   We condemn the police attack on Kirti Kamal Bora. The attack is a grotesque validation that Assam is under “Police Raj” n the situation is worse than “Secret Killings”of late 90’s.We demand the suspension of the Nagaon SP n arrest of the police officials involved in the incident. pic.twitter.com/XksY7jQCFV— Akhil Gogoi (@AkhilGogoiAG) January 23, 2022
The Climate Group, collaborating with the Swaniti Initiative, plans to train a cohort of climate fellows in selected Indian states as part of the “State Climate Fellows” initiative.  Fellows will champion climate strategies in their respective states and push the levers necessary to align state climate goals with those of the national government. Each fellow will have experience working on climate issues and will work at relevant state departments for a year. The key contact for the State Climate Fellows will be the Senior Project Officer – Government Engagement, India. This is a full-time position, with an expected start date of mid-February 2022, based on nodal...
As part of the international webinar series on Different facets of Sankaradeva Studies, organized by Society for Srimanta Sankaradeva, Geetha Sivangala Thandi, a Kuchipudi dance practitioner, California, USA delivered lecture on “Comparison between Sattriya dance and Kuchipudi dance” on 9th January, 2022. It was moderated by Dr. Sanjib Kumar Borkakoti, author and scholar of Sankari culture, who is also President of the Society for Srimanta Sankaradeva. Geetha Sivangala Thandi in her lecture compared two classical dance forms of India, Kuchipudi and Sattrīyā, belonging to Andhra and Assam regions, respectively. The context selected was the enactment of the play Pārijāta Haraṇa. It is...
Governor Prof. Jagdish Mukhi inaugurated the Platinum Jubilee celebration of Gauhati University in a programme held at the university premises here today. It may be noted that the year-long celebration of the programme will end on 26 January 2023. Speaking on the occasion, Governor Prof. Mukhi said that as the university embarked on the Platinum Jubilee Year, it was a matter of satisfaction that the University continued to provide excellent education along with policy inputs in geostrategic areas. The university’s academic exchange programmes and partnerships with the universities of several neighbouring countries continue to be the way for the nation’s Act East Policy. He also said that...
Natural disasters like floods are devastating. Women are the worst sufferers during disasters. The impact of flooding on health varies among populations and depends primarily on vulnerability and the kind of events experienced. It severely disrupts livelihoods and has a significant impact on the health of pregnant women, lactating mothers and children. It is important that pregnant and lactating mothers have adequate access to an appropriate dietary intake as both mothers and children are disproportionately affected in crisis. Under the humanitarian response programme of the North-East Affected Area Development Society (NEADS), a local grassroots organisation has been extending essential...
Press Emblem Campaign (PEC), the global media safety and rights body, wishes all media workers around the world a happy, secure and prosperous new year. The bygone year witnessed the killing of 79 media employees by assailants in 29 countries marking an improvement in the journo-murder index by 14% (where 92 were killed in 2020). PEC recently confirmed the death of Burmese journalist A Kay Sai (also known as Sai Win Aung) due to serious head injuries from a shell operated by the Myanmar military junta in the Maekheewar village of Karen State on 25 December last. Sai (38) was trapped in the crossfire between the junta forces and KNLA rebels before finally being hit by artillery from...
RAHA:  The candidates of the All Assam Students' Union (AASU) claimed a sweeping victory in the students' union election held at Raha  college today. AASU had an overwhelming win in all 12 seats for the 2021-2022 session. AASU candidates Brajarani Devi , Jyoti Sankar Nath were elected as the president and vice-president while Amar Jyoti Nath was elected as  general secretary, and Bishal Dey as the assistant general secretary.  Similarly, Bishal Das as the secretary for games, Lakhyajeet Nath as the editor, Magazine, Abinash Das as the cultural secretary, Pragyandweep Goswami as the debating secretary, Jayanta Nath as the secretary of social services and Tennis...
RAHA : Jongal Balahu Garh fish farm in Raha has become the first in state to start pearl farming. The largest fish farm in the state has started pearl farming in an experimental basis in its ponds that have been earlier used only for cultivating Indian major carps.  The project was inaugurated by Nagaon deputy commissioner Nisarg Hivare , IAS , on Sunday. He also chaired the function organised on the occasion at the farm premises.  Hivare , in his speech lauded the initiative taken up by the fishery department and believed that the new culture could bring a change to the fish farm and play a major role in spreading awareness of pearl culture , especially among the...