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

Four NDFB and three GNLA cadres arrested in Dudhnoi and Lakhipur

2 Mar 2012 - 5:08am | Hamidul Gani
Four NDFB and three GNLA cadres were arrested in three different search operations on Wednesday. In the first operation, launched by the police and CRPF jawans, one NDFB cadre was held at Mandalgram...

New feature on Salesian College cap

27 May 2017 - 8:47pm | Terence Mukhia
Salesian College Sonada (SCS) Darjeeling affiliated to North Bengal University in Siliguri is set to start 4 new BA Honours level courses for the academic year 2017-18 starting 3rd July. The new...

Multiple thefts at Tangla

25 Nov 2016 - 8:31pm | Shajid Khan
Anti-social elements have resurfaced in buisiness hub of Udalguri district Tangla. Reportedly on Wednesday night thiefs raided multiple shops at bus stand area including theft at a grocery store...

Election fever grips BTC

17 Mar 2015 - 9:31pm | Hantigiri Narzary
Although the election commission has yet to declare notification,the election fever grew up in all constituencies in BTC region that several party and organisations are gearing up to field candidates...

Other Contents by Author

Defying the diktat of separatist militants in northeast India, the media fraternity of the city has celebrated the 64th Republic Day of India at Guwahati Press Club. Following the tradition, the media persons and other patriotic citizens had assembled in the campus of the pioneer press club of the region in the morning today and hoisted the national flag. Social worker and a former legislator of Assam, Ajay Dutta unfurled the tricolor in presence of the media persons and paid his heartfelt tributes to the martyrs of India’s Freedom movement.In his brief speech, Dutta remembered the contribution of thousands of martyrs for their sacrifices which finally brought the freedom to India. He paid...
The Delhi government has agreed to set up a statute of Chaolung Sukapha in the national capital. The assurance came from Delhi Chief minister Sheila Dixit who talked to her Assam counterpart Tarun Gogoi. Before that Gogoi in a letter requested Dixit to consider the proposal to set up the first Ahom king in the national capital. The initiative assumes significance after the government invited unprecedented criticism for not giving due status to the Ahom king.
Local residents in Goalpara district beat him a suspected militant to death on Saturday night. Three motorcycles suspected to have been used by the militants were recovered from the area.One bomb is suspected to be concealed in the MLA's house and a bomb disposal squad of the police reached the place, they added. Another IED went off at Jaleshwar High School. The other explosions in Goalpara district took place at Moriakichi Bazar, Gaurnagar, Porahita and Jamadar Bazar areas. In Dhubri, the areas hit by the blasts are Airketa, Sirajkuthi and Metarteri.
A series of low intensity blasts has forced the security forces to fan in lower Assam on Sunday. Suspected ULFA militants on Saturday night set off eight IED blasts in a space of 90 minutes targeting the house of an AIDUF MLA and crowded markets in Goalpara and Dhubri districts. There, is, however, no report of casualty.ULFA, along with some other insurgents group, gave a call for boycotting the Republic Day celebrations. The first blast took place inside the residential complex of Moinuddin Ahmed, MLA of All India Democratic United Front, at Jaleshwar in Goalpara district.
Over 20 people have been injured when a passenger bus slipped into deep gorge in near Guwahati on Saturday.The accident took place at around 2-30 in the afternoon when the passenger bus was on its way to Kamakhya and suddenly it lost control and fell on a gorge where several people were rescued by police and local residents. 
Governor J B Patnaik said that the government's counter insurgency operations have fetched dividends where the republic day boycott call was defied. In his address after unfurling the national flag in Khanapara in Guwahati, he said that steps are being taken to bring about overall socio-economic development in the state. He said that the government is leaving no stone unturned to put Assam on a track of rapid development process. Patnaik also said that government was committed to fighting corruption. The N-E insurgent outfits had called for boycott of Republic Day Celebrations from 1am to 5 30 in the morning.
Normal situation prevailed on Republic Day on Saturday. Trains and air services operated as usual though long distance and city private buses kept off the roads as the transport operators gave holiday to their staff on account of R-Day. National flags were seen fluttering in banks, educational institutions, etc., remained closed. Buses, private taxis and autorickshaws of state-run Assam State Transport Corporation (ASTC) plied as usual. Private vehicles and large number of people on foot were also seen making their way to the various R-Day celebration venues across the state.The N-E insurgent outfits had called for boycott of Republic Day Celebrations from 1am to 5 30 in the morning.
Defying militant diktat, Republic Day was celebrated across the stat with much fanfare and cultural extravaganza. Tight security was put in place to ensure peace during the Republic Day and accordingly there was no report of any untoward incident so far. Assam governor JB Patnaik unfurled the national flag and took salute of the armed forces and school children at Khanapara in presence of Chief minister Tarun Gogoi. Besides march pasts by the state police and central security forces, there were also dance performances by different ethnic groups of the state upholding the spirit of the republic. Similar functions were organised by the government at district headquarters addressed by cabinet...
Dispur Vidyalaya Alumni Association is going to organize second alumni meet at the premises of Dispur Government Higher Secondary School on Sunday, 27th January, 2013. The meet will a platform for all the Dvians to come to a common ground and devise ways to better the educational and extracurricular activities for the present set of students studying in this historical school.It is to be noted that the first chapter of the alumni meet was held last year on 29th January, 2012. The meet helped to forge a bond of community among Dvians from as many batches and a sense of commitment to the betterment of the school. While a website of the school, www.dispurvidyalaya.org, was...
The media fraternity of the city will hoist the national tricolor tomorrow (Jan 26) at Guwahati Press Club. The program will begin at 11 am sharp. Every one is requested to participate in the program with an aim to pay tributes to the martyrs of India’s Freedom Movement.