Calcutta High Court (Appellete Side)
Shamit Sanyal vs State Of West Bengal & Ors on 28 July, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
1
28.07.2014 W.P. No. 19131(W) of 2014
Shamit Sanyal
Vs
State of West Bengal & ors.
with
W.P. No. 20515(W) of 2014
Biplab Kumar Chowdhury
Vs
State of West Bengal & ors.
Mr. Subrata Mukhopadhyay, Advocate
Mr. D. Saha, Advocate
Ms. B. Roy Chowdhury, Advocate
..... For the petitioner
in W.P. 19131(W)/2014
Mr. Aniruddha Chatterjee, Advocate
Mr. Sukanta Chakrabarty, Advocate
..... For the petitioner
in W.P. 20515(W)/2014
Mr. A. K. Banerjee, Govt. Pleader
Mr. Manjit Singh, Public Prosecutor
Mr. Sakya Sen, Advocate
Mr. Amritlal Chatterjee, Advocate
...... For the State
Mr. R. Majumder
....For the respondent no. 7
in W.P. 20515 (W)/2014
1. I was hearing W.P. No. 19131(W) of 2014 (hereafter the
first w.p.) on July 21, 2014 when Mr. Aniruddha
2
Chatterjee, learned advocate intervened and submitted
that a writ petition [W.P. 20515(W) of 2014] (hereafter
the second w.p.) involving the same "speech" which has
given rise to the first w.p. is due for being listed on July
23, 2014 and hence both the writ petitions may be heard
together. His request was accepted and the writ petitions
heard at length on July 23, 2014, one after the other.
Order on the point of entertainability of the first w.p. and
order on the point of interim relief in the second w.p.
were reserved. I propose to decide the said points by this
common order.
2. During the last one year, the people of this State have
witnessed a multitude of speeches of political leaders
owing allegiance to different political groups or parties.
Out of them, the speech delivered by Mr. Tapas Paul,
Hon'ble Member of Parliament elected to the Lok Sabha
from Krishnagar constituency (respondent 10 in the first
w.p. and respondent 7 in the second w.p., and hereafter
referred to as Mr. Paul) has been at the centre of
controversy. While addressing a gathering of people in
public view at Chowmaha, in Tehatta sub-division of
Nadia district, Mr. Paul is reported by the electronic and
print media to have spewed venom against his political
3
opponents, mainly the supporters of CPI (M) party. Video
footage that has been made available to the Court as well
as newspaper reports that have been annexed to the two
writ petitions would reveal that Mr. Paul exhorted his
followers to slay his political opponents and to even rape
their womenfolk, if they dared to touch them (his
followers). There is some dispute with regard to the date
on which the speech was delivered, - while according to
the media the date is June 14, 2014, Mr. Rajdeep
Majumdar, learned advocate representing Mr. Paul,
submitted in reply to the Court's query that it was
delivered during an election campaign prior to
declaration of result of the recently concluded Lok Sabha
elections on May 16, 2014. However, the date is not too
relevant at this stage.
3. The speech of Mr. Paul could not have and did not go
unnoticed. The issue was raised in the Parliament, as
reported by the media. I need not dilate much on the
aspect of protest that followed except noting that the
political party to whom Mr. Paul owes allegiance
reportedly pulled him up and he has since apologised for
the comments made by him to such party.
4
4. According to both the petitioners, despite the speech of
Mr. Paul being one that incites hatred and ill-feelings
amongst different groups of people and encourages his
followers to breach the law by resorting to killing and
rape, the police did not consider it necessary to take
action resulting in the presentation of these two writ
petitions alleging "police inaction".
5. The first w.p. is at the instance of an advocate, who
claims to be a resident of Krishnagar. It is alleged by him
that as a result of Mr. Paul's speech, a reign of terror has
been unleashed and the friends, relatives, etc. of the
petitioner have been passing their days in great fear
because of their allegiance to the rival political party
targeted by Mr. Paul in his speech. The prayer is for a
direction on the respondents to command the
respondents "to show-cause as to why no proceeding has
been drawn up against the person has openly threatened
the supporters and workers of other political parties" and
to fix up responsibility of government officers, jointly and
severally, in respect of the administrative inaction
including inertness of the local police station and the
Election Commission. Prayer has also been made for a
direction on the respondents to take appropriate
5
measures for ensuring the safety and security of the
residents of the locality, specially the female residents
and to draw appropriate proceedings against Mr. Paul for
his insensitive comments giving rise to fear and concerns
for the safety and security of women.
6. Three-fold preliminary objection to the entertainability of
the first w.p. by me was raised by Mr. Banerjee, learned
Govt. Pleader appearing for the State and the police
officers who are arrayed as respondents. First, he
submitted that a public interest litigation, registered as
W.P. (Criminal) No. 126 of 2014, has been initiated by
Mr. Bijan Ghosh, an advocate before the Supreme Court
in respect of the self-same speech of Mr. Paul and in
view of Article 139A of the Constitution, the hearing of
the first w.p. ought to be deferred till such time the writ
petition of Mr. Ghosh is considered to avoid conflicting
decisions. Secondly, according to him, no personal right
of the petitioner has been infringed by reason of the
subject speech and the petitioner, swayed by reason of
sentiments, appears to have invoked the writ
jurisdiction. It has also been contended that the
pleadings would show that the litigation has been
instituted in public interest and, consequently, it was
6
submitted that the first w.p. ought to be released by me
for being placed before the appropriate Division Bench
having determination to hear 'public interest litigation'
matters. Finally, it was submitted that even if I am
inclined to hear the petitioner in regard to his grievance,
it ought to be noted that he did not lodge any complaint
before the police prior to presenting the writ petition and
has straight-away approached the writ court; hence, the
writ petition ought not to be entertained and the
petitioner relegated to the remedy provided by the Code
of Criminal Procedure (hereafter the Cr.P.C.).
7. Per contra, Mr. Mukhopadhyay, learned advocate
appearing in support of the first w.p. contended that the
pleadings therein make out sufficient cause for this
Bench to entertain it as a proceeding instituted in
private interest. The petitioner, according to him, is a
resident of Krishnagar and it is beyond his imagination
that the Member of Parliament in the Lok Sabha
representing Krishnagar, which is a cultural hub, would
be so insensitive to the feelings of the residents of
Krishnagar that such a shocking speech could be
delivered by him, which was widely reported by the
media, and even then the police would remain idle.
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According to him, the Court's intervention on this writ
petition is required for restoring the confidence among
the residents of Krishnagar by apprehending Mr. Paul.
Reference has been made to paragraphs 5, 15, 16, 22,
23, 26 and 27 of the writ petition to support the
contention that the petitioner's individual interest has
also been affected along with the interest of the residents
of Krishnagar and that the writ petition alleging police
inaction is maintainable before me since I have the
determination to take up writ petitions pertaining to
Group IX (residuary matters) of the Classification List
appended to the Writ Rules.
8. Mr. Chatterjee, learned advocate for the petitioner in the
second w.p. referred to a written complaint dated July 1,
2014 lodged by the petitioner with the Inspector-in-
Charge, Nakasipara Police Station as well as the
Superintendent of Police, Nadia on July 2, 2014.
According to him, as a responsible and law-abiding
citizen the petitioner had lodged the written complaint
contents whereof clearly make out cognizable and non-
bailable offences punishable under Sections 141, 148,
149 and 151, Indian Penal Code (hereafter the IPC),
apart from Section 125 of the Representation of the
8
People Act, 1951 (hereafter the RoP Act). Referring to the
Constitution Bench decision of the Supreme Court in
Lalita Kumari v. Government of U.P., reported in (2014)
2 SCC 1, he contended that it is the statutory duty of the
police to register a First Information Report (hereafter
FIR) on receipt of a complaint disclosing cognizable
offence and that the provision in Section 154(1) Cr.P.C.
has been construed to be mandatory in character.
Paragraphs 52 to 55, 93 to 95, 101, 115 and 120 of the
decision were relied on in support of the contention that
there has been an abject failure of the police to perform
a mandatory duty. Referring to Section 39 of the Cr.P.C.,
Mr. Chatterjee argued that the petitioner had discharged
his solemn duty thereunder by giving prompt
information to the said inspector-in-charge of offences
committed by Mr. Paul and his followers, yet, the police
did not act. My attention was also drawn to a newspaper
report of July 4, 2014 to the effect that Mr. Paul had
delivered volatile speeches in other villages of Tehatta
sub-division and the fall out of such speeches was the
destruction of the house of one villager. Since the police
failed to take action on the complaint in discharge of its
mandatory duty, it was urged by Mr. Chatterjee that the
9
Court ought to step in in furtherance of its constitutional
obligation to enforce the law and pass directions on the
said inspector-in-charge to register the FIR and to
entrust the Criminal Investigation Department (hereafter
C.I.D.) for conducting investigation.
9. This writ petition has been opposed by Mr. Manjit Singh,
learned public prosecutor as well as by Mr. Banerjee.
10. In course of hearing of the first w.p. (before the second
w.p. was presented), I had requested Mr. Banerjee to let
me know the stand of the Government in regard to the
speech delivered by Mr. Paul. No clear-cut answer was
given by him; however, Mr. Singh submitted that the
complaint lodged by the petitioner in the second w.p. did
not disclose any cognizable offence and, therefore, there
was no question of the police setting the ball in motion
for conducting an investigation. According to him, every
offence comprises intention to commit offence,
preparation to commit offence, attempt made therefor
and the commission of the offence itself; but in the
present case, there was no element of either intention or
preparation or attempt or commission of offence and a
reaction being perturbed by the murder of a follower
10
would not attract any of the sections of the IPC and the
RoP Act referred to by Mr. Chatterjee. It was also
submitted that there has been no act of violence or
untoward incident in the concerned village following Mr.
Paul's speech, meaning thereby that the situation is
normal and not much importance should be given to the
petitioner's grievance.
11. Mr. Singh, like a fair counsel, was heard submitting that
at one point of time he felt Section 509, IPC could be
attracted. Replying to a query as to why the FIR was not
registered thereunder, he was quick in responding that a
change in his view was necessitated after reading the
decision in S. Khushboo v. Kanniammal, reported in
(2010) 5 SCC 600. Referring to paragraph 23 of the
decision, it was submitted that no readily identifiable
group of women had been insulted by Mr. Paul and,
therefore, Section 509, IPC would also have no
application.
12. The decision in Sakiri Vasu v. State of U.P., (2008) 2
SCC 409, was relied on by Mr. Singh to contend that the
petitioners have not approached the relevant magistrate
either under Section 156(3) or Section 200 of the Cr.P.C.
11
i.e. the remedy made available by the statute, and thus
the writ petition may not be entertained.
13. Mr. Banerjee raised the point of maintainability of the
second w.p., while admitting that the speech of Mr. Paul
was obnoxious. According to him, certain pleadings have
been verified as "true to knowledge" of the petitioner
whereas the same should have been verified as "true to
information" derived from the reports of the
print/electronic media. He also referred to the decision
of the Supreme Court in Laxmi Raj Shetty v. State of
Tamil Nadu, reported in (1988) 3 SCC 319, to contend
that newspaper reports are not admissible in evidence
and thus prayed for outright dismissal of the writ
petition.
14. Mr. Majumdar submitted that the speech of Mr. Paul
was the result of an emotional outburst that followed
murder of one of his followers immediately prior to the
speech and too much ought not to be made out of it,
particularly when he had apologised to the public at
large and his party members. Although there was a faint
echo of Mr. Singh's contention that the petitioner's
12
complaint did not disclose cognizable offence, there was
no rebuttal of the documents annexed to the second w.p.
15. The parties have been heard.
16. Parliament, to my mind, is like the sanctum sanctorum
of the temple of constitutional democracy, with the
Constitution as the holy book and the parliamentarians
the priests. To structure an ordered polity by framing
appropriate laws is the primary role of the Parliament. In
doing so, what has invariably been reasonably expected
from the ordinary or usual norms of human conduct of
parliamentarians is a sense of decency, morality,
integrity and propriety, while bearing true faith and
allegiance to the Constitution. Immediately after India
attained independence and the erudite and eminent
founding fathers of the Constitution were engrossed in
its making, they might have thought that scheming,
mentally corrupt, vile, perverted, vicious and wicked
people would have no room in a sacred place like the
Parliament and that could be reason as to why only
certain basic qualifications for membership of
Parliament were provided in the Constitution, leaving it
to the Parliament to prescribe other qualifications by law
13
made in that behalf, and no provision for disqualification
was incorporated. Also, those instrumental in legislating
the RoP Act, which soon after saw the light of the day,
may not have perceived that with the change of times,
there could be drastic change in the mind-set of future
parliamentarians and a parliamentarian could
misbehave to such an extent that such misbehaviour
itself could be a ground for his removal from the
membership of the Parliament. It is much later that
Section 123 of the RoP Act was amended to include
promotion or attempt to promote feelings of enmity or
hatred on the specified 5 (five) grounds for achieving the
specific object(s) as indicated, as a "corrupt practice".
Facts have always been stranger than fiction and no
wonder, over the years, the Parliament has been rocked by controversies involving parliamentarians lacking scruples, both within and beyond, most of which were avoidable. Instead of promoting harmony among people, often times it is friction that has been preferred. Violence and intimidation perpetrated by some of the elected representatives of people and their propensity to accomplishment of tasks not quite legal by muscle power have made headlines for the wrong reasons. The 14 present-day situation fares no better. It seems that the rich political culture of striving to uphold, maintain and advance the preambular promise for the people's welfare and the progress for making a better India, with which one would associate the Parliament, has taken a toss. An English news channel, not too long ago, telecast an interview with an Hon'ble Member of Parliament (Lok Sabha) elected from Barasat constituency, in the district of 24 Parganas (North). The ugly happenings in the hall of the Lok Sabha during the budget session and the dirty exchanges between the parliamentarians that she narrated, if the same are to be believed, are beyond all bounds of decorum and dignity that one would attach with the proceedings of the Parliament. My sense of ethics chokes my voice to express the uncivil utterings and exchanges. Fortunately, none of the founding fathers is alive and I wonder how they would have reacted looking at the temple being defiled.
17. Outside the Parliament too, the Parliamentarians have been found to be wanting in exhibiting exemplary conduct. I shall be failing my oath if I am to prefer reticence to disclosure of a real unvarnished truth. A very small segment of people who, being absolutely 15 unworthy of realizing the high and respectable positions as parliamentarians and having no sense of what morals are, by their utterly irresponsible and blameful conduct have disgraced the entire Parliament so much so that the people of the nation are heard to exclaim in despair that the Parliament has failed them. Howsoever sincere the responsible, dedicated and caring lot of parliamentarians may be in their efforts to promote that, for which they have been elected, a sense of ill-will towards politicians as a class seems to be developing which, if not addressed immediately, is likely to assume alarming proportions in future.
18. It is not that alarm bells have not been rung earlier. Reference may be made to Inderpreet Singh Kahlon v. State of Punjab, reported in AIR 2006 SC 2571, where the Supreme Court in a different fact situation could not help observing that:
"The founding fathers of the Constitution perhaps, in their wildest dreams, could not have visualized that the people who are expected to strictly adhere to the constitutional values and guide the destiny of the Nation, in times to come would malign and denigrate the system to such an extent that for his grave misdeeds, the constitutional authority itself, in the larger public interest would be required to be put behind the bars."16
19. Every reasonable and prudent citizen of the country would sincerely hope and trust that the Parliament itself would rise to the occasion to rein in the unruly and find a solution to avert any resultant damage beyond repair and redemption.
20. Reverting attention to the contentious issues that arise for decision on these writ petitions, a decision has to be given first as to whether they ought to be entertained by me or not.
21. It is undeniable that the Constitution guarantees freedom of speech and expression to every citizen including Mr. Paul. However, that is not absolute. I am tempted to refer to the decision in Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, reported in (1995) 2 SCC 161, where an illuminating discussion on such right is found. The relevant passages read as under:
"51. Article 19(1)(a) declares that all citizens shall have the right of freedom of speech and expression. Clause (2) of Article 19, at the same time, provides that nothing in sub-clause (i) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with the foreign States, public order, decency or morality or 17 in relation to contempt of court, defamation or incitement of an offence. The grounds upon which reasonable restrictions can be placed upon the freedom of speech and expression are designed firstly to ensure that the said right is not exercised in such a manner as to threaten the sovereignty and integrity of India, security of the State, friendly relations with the foreign States, public order, decency or morality. Similarly, the said right cannot be so exercised as to amount to contempt of court, defamation or incitement of an offence. Existing laws providing such restrictions are saved and the State is free to make laws in future imposing such restrictions. The grounds aforesaid are conceived in the interest of ensuring and maintaining conditions in which the said right can meaningfully and peacefully be exercised by the citizens of this country.
187. A look at the grounds in clause (2) of Article 19, in the interests of which a law can be made placing reasonable restrictions upon the freedom of speech and expression goes to show that they are all conceived in the national interest as well as in the interest of society. The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are grounds referable to national interest whereas the second set of grounds, viz., decency, morality, contempt of court, defamation and incitement to offence are conceived in the interest of society. The interconnection and the interdependence of freedom of speech and the stability of society is undeniable. They indeed contribute to and promote each other. Freedom of speech and expression in a democracy ensures that the change desired by the people, whether in political, economic or social sphere, is brought about peacefully and through law. That change desired by the people can be brought about in an orderly, legal and peaceful manner is by itself an assurance of stability and an insurance against violent upheavals which are the hallmark of societies ruled by dictatorships, which do not permit this freedom. ***"18
(underlining for emphasis by me) The conduct of Mr. Paul has to be viewed in the light of the observations made above.
22. The Supreme Court in Pravasi Bhalai Sangathan v.
Union of India and ors., reported in AIR 2014 SC 1591, while hearing a plea urged in public interest that the existing laws of the country are not sufficient to cope with the menace of "hate speeches", had the occasion to consider what a "hate speech" is. I may quote the relevant passage hereunder:
"7. Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a social impact. Hate speech lays the ground-work for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy."
23. Bare perusal of the complaint dated July 1, 2014 lodged by the petitioner would reveal the petitioner's allegation that Mr. Paul claimed himself to be a gangster who moves 19 around with a revolver and would not hesitate to shoot his opponents. It was further alleged that he threatened to unleash his boys, who would rape the female family members of such opponents. The petitioner apprehended serious trouble and chaos insofar as the law and order situation is concerned and while also alleging that Mr. Paul was trying to promote enmity between different groups, urged the police to immediately register an FIR against Mr. Paul for abetting others in an open forum to commit cognizable and non-bailable offences and to take steps in accordance with law so that he is punished for preaching and practising social crimes such as offence against women.
24. Regard being had to the passage from the decision in Pravasi Bhalai Sangathan (supra) vis-a-vis the contents of the complaint lodged by the petitioner referring to the speech of Mr. Paul, there does not appear to be any difficulty to regard it as a 'hate speech'. How the author of a 'hate speech' should be dealt with is also found in Pravasi Bhalai Sangathan (supra). The relevant passage is quoted below:
"27. As referred to herein above, the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of 'hate speech'. Thus, person aggrieved must resort to the 20 remedy provided under a particular statute. The root of the problem is not the absence of laws but rather a lack of their effective execution. Therefore, the executive as well as civil society has to perform its role in enforcing the already existing legal regime. Effective regulation of 'hate speech' at all levels is required as the authors of such speeches can be booked under the existing penal law and all the law enforcing agencies must ensure that the existing law is not rendered a dead letter. Enforcement of the aforesaid provisions is required being in consonance with the proposition "salus reipublicae suprema lex" (safety of the State is the supreme law)."
(underlining for emphasis by me)
25. Bearing in mind the dicta as extracted supra, I shall proceed to consider the rival submissions.
26. Since none of the respondents have seriously disputed the assertions in the second w.p., it would be safe to proceed on the impression that no incorrect representation of facts has been made by the petitioner.
27. Mr. Banerjee's argument that the Supreme Court is in seisin of a public interest litigation and, therefore, hearing of these writ petitions ought to be deferred, was considered by me from day one to be lacking in merit. I would have given my reasons therefor but the same exercise need not be undertaken because the writ petition of Mr. Bijan Ghosh has been dismissed by the Supreme 21 Court on July 25, 2014 with liberty to him to prosecute any other remedy for redressal of his grievance.
28. The dismissal of the writ petition (public interest litigation) of Mr. Bijan Ghosh by the Supreme Court cannot, however, have any telling effect on the fate of these writ petitions, which have been filed alleging infringement of personal rights.
29. Insofar as the second objection of Mr. Banerjee regarding entertainment of the first w.p. by me is concerned, I need not decide it having regard to the view I propose to express while dealing with the third objection of Mr. Banerjee relating to non-filing of any complaint by the petitioner before the police prior to presentation of the first w.p.
30. The objection has merit. Although the police in terms of the Cr.P.C. has wide powers and is even empowered to arrest an offender accused of commission of a cognizable offence without waiting for an FIR to be registered at a police station, it is the discretion of the police whether to act suo motu in a given case or not. A mandatory statutory duty imposed on a public official has necessarily to be distinguished from a statutory power conferred on such official, which ought to be or could be 22 exercised in his discretion if the circumstances so warrant. Where inaction to perform a duty or dereliction of a duty by a public official is alleged, the Court ought to endeavour to ascertain whether the power coupled with duty of which inaction or dereliction is alleged is a mandatory duty or a power requiring its exercise in the discretion of the official. If it be the latter, it would be impermissible for the Court to direct such official to exercise his discretion in a particular direction. Given the factual position that the police did not act suo motu in its discretion and that the petitioner also did not lodge any complaint before the police urging that it ought to be registered as an FIR, I am of the view that no case for interference has been set up in the first w.p.
31. W.P. No. 19131(W) of 2014, accordingly, stands dismissed reserving the liberty of the petitioner to pursue the remedy provided by law.
32. It would now be necessary to consider the second w.p.
Point of entertainability of the writ petition has been raised by Mr. Singh by referring to Sakiri Vasu (supra), while Mr. Banerjee has questioned its maintainability. I propose to decide the objection of Mr. Singh at a later part of this order after adverting to his submission that 23 the complaint of the petitioner does not disclose any cognizable offence. It is axiomatic that if I agree with Mr. Singh, the writ petition would fail on merits and the preliminary objection raised by him, which is in the nature of a demurrer, would not be required to be dealt with at all.
33. The objections of Mr. Banerjee are dealt with seriatim. 33.1. This writ petition raises an important issue of complete lack of enforcement of law by the State police; unfortunately, the State has come out in poor light by raising such frivolous objection of improper verification. It would be perfectly legal for someone to derive knowledge of incidents from media reports, either by perceiving it through his eyes or eyes and ears both, and then to verify the contents of the concerned paragraphs, where such incidents are pleaded, as 'true to knowledge'. I have no hesitation in overruling the objection. 33.2. With due respect to Mr. Banerjee, the ratio of the decision in Laxmi Raj Shetty (supra) does not assist the State either. His admission that the speech of Mr. Paul is obnoxious and Mr. Majumdar's attempt to downplay the speech as an emotional outburst lend credence to the version of the petitioner. With the advent of 'electronic 24 record' and its introduction in the Evidence Act, a sea change is discernible. Quite apart, the question involved here is the allegation of gross dereliction of duty by the police. Believing or not believing a newspaper report is not an issue. This objection too lacks merit. 33.3. Pertinently, the chink in the State's armour is truly manifested by the frivolity of the submissions made by Mr. Banerjee. The first w.p. was opposed on the ground that its presentation was not preceded by any written complaint; once the second w.p. came up for consideration, there was a convenient u-turn and technical objections of little worth started flowing thick and fast. It is a great pity that the State in order to defend the indefensible has shown such a tendency.
34. Now, I move on to deal with Mr. Singh's contention that the complaint of the petitioner dated July 1, 2014 does not disclose any cognizable offence.
35. The gist of the complaint has been noticed above. Does it not disclose commission of a cognizable offence by Mr. Paul? To me, Sections 115, 141, 153A, and 509, IPC, prima facie, seem to be attracted.
36. It would not be proper at this stage of the proceedings to delve deep into a detailed discussion for assigning 25 elaborate reasons in support of the prima facie view expressed above, since that might prejudice the interest of some in future. However, an indication of the line of thought may make the position clear and save this order from the vulnerability of being branded as unreasoned. An allegation of abetment to commit cognizable offence is evident from the complaint. Regarding applicability of Section 141, IPC, whether or not there was an unlawful assembly, whether or not an assembly of persons which was not unlawful when it assembled but subsequently became an unlawful assembly, and whether or not any person joined the unlawful assembly armed with deadly weapon are all matters requiring thorough investigation. Law also seems to be well settled regarding the scope and impact of Sections 153A and Section 509, IPC. The gist of the offence spoken of in Section 153A is the intention to promote feelings of disharmony or enmity or hatred or ill-will between different classes of people on whatever ground, and committing an act prejudicial to the maintenance of harmony between different classes of people with the intention to disturb public tranquillity. Here, Mr. Paul was speaking on behalf of one group and the contents of his speech were directed against a 26 particular group or community of people. Section 509 makes a word, gesture or act intending to insult the modesty of a woman punishable. Mr. Singh's reading of Section 509, IPC based on the decision in S. Khushboo (supra) does not prima facie commend to be correct, since it is not necessary that the offence should have been committed against an individual woman but it would extend to cases where a distinct identifiable group of women is targeted. These are the provisions under which Mr. Paul could have been booked and investigation conducted to unearth the truth on the basis of the petitioner's complaint.
37. Since some argument on the purport of Section 153A, IPC was advanced by Mr. Singh and Mr. Chatterjee argued that Section 125 of the RoP Act would be attracted on facts and in the circumstances, I wish to express my views thereon. Although it true that in India a community is often recognised on the basis of caste, race or religion, at the same time communities formed not on the basis of caste, race or religion but on social, economic or political basis are visible. It cannot be ignored that clause (a) of sub-section (1) of Section 153A, IPC refers to "any other ground whatsoever" apart from 27 grounds of "religion, race, place of birth, residence, language, caste or community". The ground on which Mr. Paul exhorted his followers to commit offences are covered by the expression "any other ground whatsoever" and if translated into action could have given rise to disharmony or feelings of enmity, hatred or ill-will between two communities formed on political basis. The term "communities" could be understood in a wider sense so as to include communities of persons having same political interests. To my mind, the words "any other ground whatsoever" are crucial for the purpose of construing "communities" and the former words being absent in Section 125 of the RoP Act, may not result in the hate speech amounting to an offence thereunder.
38. True it is that in course of hearing Mr. Chatterjee did not refer to all the statutory provisions referred to above but that does not ipso facto dilute the gravity of the offences alleged to have been committed by Mr. Paul. The police must be aware of the penal provision(s) which would apply having regard to the nature of allegation(s) levelled in a complaint. I wonder whether it is due to lack of fundamental knowledge of the criminal laws or a 28 calculated move to save a Member of Parliament from being prosecuted that the complaint was not registered as an FIR. Nonetheless, I have no hesitation to overrule the contention of the State.
39. There is one other aspect that cannot be overlooked. If indeed the police were of the view that the petitioner's complaint did not disclose any cognizable offence, a duty was cast on it in terms of Section 157, Cr.P.C. to inform the petitioner that his complaint would not be investigated. Mr. Singh was fair enough to admit that the petitioner was not notified. Thus there cannot be any two opinions that the police by not registering an FIR on receipt of the petitioner's complaint, and then again by not notifying the petitioner that the complaint would not be investigated, exhibited gross dereliction of duty.
40. At the end of the discussion on the point, I owe a duty to make one thing clear. Observations made in this order might affect Mr. Paul in proceedings initiated in future. Since the writ petition is at the interim stage, all observations in respect of the complaint as well as those touching Mr. Paul's conduct made hereinabove are prima facie and without prejudice to his rights and contentions in future proceedings.
29
41. Having found that the complaint of the petitioner was one that ought to have been investigated, the next question is whether the second w.p. should at all be entertained in view of the decision in Sakiri Vasu (supra).
42. The argument of Mr. Singh that the petitioner ought to have approached the relevant magistrate under the Cr.P.C. suffers from a basic fallacy. This argument was not raised as an alternative to the argument that the complaint dated July 1, 2014 does not disclose a cognizable offence. If indeed the contents of the complaint were such that it did not disclose a cognizable offence, there was no question of the petitioner approaching the relevant magistrate. I wonder whether Mr. Singh has raised this technical objection to avoid a decision on the merits of the second w.p.
43. Be that as it may, much water has flown down the Ganga since the decision in Sakiri Vasu (supra). The said decision was rendered at a point of time when the law on the point as to whether the police could conduct a preliminary enquiry into the allegations levelled in the complaint before registering it as an FIR, was unsettled. Lalita Kumari (supra) has settled the law that: 30
"120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a)Matrimonial disputes/family disputes
(b)Commercial offences
(c)Medical negligence cases
(d)Corruption cases
(e)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 reasons for delay.31
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."
44. It is true that having regard to the self-imposed restrictions, a High Court exercising writ powers under Article 226 may refuse to entertain a challenge to an action/inaction of a public official who, being bound to perform certain mandatory duty, acts in disregard thereof, but it cannot be gainsaid that varying fact situations require different approaches, and it would be insensible to either envisage or lay down hard and fast guidelines of universal application. Rule of law, in terms of the Constitution, pervades over the entire field of administration and every organ of the State is regulated by it. In fact, what the Constitution envisages is a rule of law and not rule of goons having political support. An ordered polity within India to promote the integrity of the country and to enliven the trinity of liberty, equality and fraternity, which Dr. B.R. Ambedkar was heard to say in the Constituent Assembly are not to be treated as separate entities but as a trinity, are the fundamental principles engrained in the Constitution. This trinity can be bypassed or overlooked only if the fabric of which the Constitution is woven be torn to pieces. Regrettably, for 32 indolent State mechanisms and politicians like Mr. Paul, this can never happen for the Courts shall not countenance violation of constitutional principles by anyone, even those who are required to lay down the law, and hence while acting as the sentinel on the qui vive and being always there as a watch guard of the Constitution to repel any attack on it, would ensure that the democratic values enshrined in the Constitution are respected and the ideals upheld.
45."Injustice anywhere is a threat to justice everywhere", as said by Martin Luther King, Jr. has been accepted by the Supreme Court to be true, while proceeding to hold that the people's faith in the judiciary cannot be afforded to be eroded [see N. Kannadasan v. Ajay Khose, (2009) 7 SCC 1].
46. The discretionary power that is vested in the High Court for enforcement of the fundamental rights or for any other purpose is meant to be exercised on considerations of justice, and for eradicating injustice. I am reminded of the decision in Municipal Council, Ratlam, v. Vardichan, reported in (1980) 4 SCC 162, where Hon'ble V.R. Krishna Iyer, J. speaking for the Bench held : 33
"Judicial discretion becomes mandatory duty when facts and circumstances for its exercise are present."
47. The law on the subject of entertainment of writ petitions alleging police inaction despite remedy available under the Cr.P.C. has been extensively dealt with by me in Kalpana Pal v. State of West Bengal & ors., 2011 (3) CHN (CAL) 460. Relying on a host of decisions of the Supreme Court including the decision in Union of India v. R. Redappa, reported in (1993) 4 SCC 269 where it was ruled that once the writ Court is "satisfied of injustice and arbitrariness then the restriction, self-imposed or statutory, stands removed and no rule or technicality on exercise of power can stand in the way of rendering justice", I proceeded to summarise the principles in paragraph 133 that a writ Court ought to bear in mind while deciding allegations of police inaction vis-à-vis alleged violation of rights to life as well as property hold, as follows:
"133.The principles (emerging from the aforesaid decisions and discussions and the submissions of learned amicus curiae and learned counsel) that the Court ought to bear in mind while deciding allegations of police inaction in respect of alleged violation of rights to life and of liberty as well as property may be summarized as follows:
a. Whenever a writ petition is presented before the Writ Court alleging police inaction, the Judge ought 34 to separate the chaff from the grain and entertain only those matters which deserve adjudication for upliftment of our constitutional jurisprudence keeping in mind the extra-ordinary powers conferred on him by the Constitution itself vis-a-vis exercise of such power for enforcement of the rights guaranteed under Part III of the Constitution or for any other purpose for which any of the writs would, according to well-established principles, issue; b. A Court of Writ may interfere for issuing directions to an authority who has failed to discharge a statutory duty. The police authorities may be directed to give protection to a writ petitioner when the Court is satisfied that there is justification in his perception of threat to his person by a private party or when his right of personal liberty is likely to be invaded by such party and the police is found to be hands in glove with him;
c. The Court may also direct the police to register a complaint as FIR, notwithstanding the provisions in the Cr.P.C., when acts purporting to constitute offences under the Indian Penal Code (hereafter IPC) thereby leading to invasion of the right recognised by Article 21 are alleged or in an appropriate case where interference is considered necessary with the caveat that further proceedings or investigation would be conducted entirely uninfluenced by the fact that the FIR was registered on the directions of the High Court;
d. The police may be directed to intervene when the Court is approached for protection of rights declared by a decree of a civil court, or by an order passed by it, determining rights of parties finally or even at least at an interlocutory stage in an unambiguous manner and that too in furtherance of the decree or order;
e. No direction ought to issue to protect one's right to property when a Civil Court has been approached and the lis is pending before it for adjudication; f. Adjudication by the Writ Court of disputed questions of fact regarding right, title and interest in respect of immovable properties emerging from affidavit evidence ought to be eschewed and the parties granted liberty to pursue the channel of civil litigation;
35g. It would not be proper to exercise power if a writ of mandamus is sought for directing the police to protect a claimed possession of a property without first establishing such possession free from all doubts;
h. Discretion concededly must be reserved to the police to decide its course of action upon receipt of a complaint. However, the officer-in-charge concerned is duty-bound to register FIR on the basis of such an information disclosing cognizable offence since provision of Section 154 of the Cr.P.C. is mandatory and veracity of the allegations levelled in the complaint is not a matter for consideration of the police before registering a case [see : Ramesh Kumari v. State (supra)]; and i. If a party approaches the Superintendent of Police or the competent authority with a prayer for deputing police personnel upon payment of requisite cost by him and such prayer is not heeded, the Court would be justified in passing a mandatory direction for consideration of such prayer according to law."
48. The preliminary objection to the entertainability of the second w.p. ought to be decided bearing in mind that people who have an aptitude for anti-social activities and undermine the rule of law are considered a menace to society. Reference must also be made to the status of Mr. Paul and the contents of the speech delivered by him. Mr. Paul before joining politics acted in several Bengali films as a 'hero'. Gradually, he has made his way into politics and has been elected to the Lok Sabha twice. As an actor-cum-politician, he is an idol to many. Whatever he has said and reported by the media are part of the records of the writ petition. When a person of such a 36 stature ventures to exhort his followers to indulge in killing of men and rape of women and to devastate their lineage should anyone from the opposition attack such followers, and despite being informed of a cognizable offence having been committed the police remains unmoved, it would amount to a gross miscarriage of justice and an abject failure of the judicial process if the writ Court were to fold its hands on the specious ground that an alternative remedy is available and the petitioner ought to knock the doors of the relevant magistrate for getting a complaint of this nature registered as an FIR.
49. Mr. Majumdar has urged me to consider that Mr. Paul has apologised for his conduct and the matter must be allowed to rest. To whom did he tender an apology? To his party or to the public, I asked? He was silent. Apart from tendering an apology to his party, nothing of worth has been shown to me that Mr. Paul has tendered a public apology. If indeed a public apology had been tendered by Mr. Paul at the site from where he delivered the hate speech and had shown remorse for his conduct, different considerations may have arisen. I hold that tolerance of activities which are prohibited by law would render the concerned legal provision nugatory and usher 37 in disorder and chaos, which in turn would lead to a lawless society and the legitimacy of the judicial process may come under a cloud if non-compoundable offences were condoned. There is, thus, no question of condoning such serious infringement of law.
50. If the speech had been delivered not by Mr. Paul but an ordinary citizen, one may have been inclined to view it as an aberration. However, every politician like Mr. Paul must realize that they are constantly in public glare and for them there is really no margin for an error. Life of a citizen is not cheap; life is precious and the protective shield of law cannot be withered away so as to leave the citizens of this State in a state of lawlessness. What is most painful and distressing is the clapping by the followers of Mr. Paul present at the venue of the speech, upon hearing their leader boast of what he is capable of and his use of expletives for exterminating his opponents. There are infinite ways for a parliamentarian to gain popularity among the masses; but it is unexpected that a parliamentarian would aspire to become popular at the cost of a fellow citizen. It seems that the constitutional ethos has had little effect on Mr. Paul or else he would not have disrespected the 38 Constitution in such vulgar manner. In a case of the present nature, if the Court does not show utmost concern and extreme solicitude in upholding and safeguarding the interest of the citizens, it would be at risk of being condemned as a party to the injustice.
51. Mr. Paul by his bizarre act has shown an evil tendency to become law unto himself. If this tendency is not nipped in the bud, the situation would take a turn for the worse for the State. It would breed contempt for the rule of law and encourage followers of politicians like Mr. Paul to take law in their own hands. If a law-maker becomes a law-breaker and the law enforcing agency despite being informed turns a blind eye to it, can a civilised nation tolerate it? What should the writ Court do, if it is approached? Does it, abiding not by a rule of law but by a mere rule of convenience decline interference, or does it act as the custodian and the protector of the fundamental and other basic human rights of the citizens? No second thought on answering this question arises and I am of the firm view considering the pros and cons that no Court should allow anarchy to take over the rule of law by a hands-off attitude.
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52. Judicial notice could be taken that murder, rape, cruelty, torture, atrocities and other crimes are being perpetrated in this country as never before, thereby disturbing the harmony of society and rendering peace and tranquillity as casualties. There is a feeling of fear and insecurity in the air. Much of these crimes go unpunished because of political patronage. Violence and crime constitute a threat to an established order and are a revolt against civilised society. Those entrusted with maintenance of law and order care less. Abiding by political diktats is considered much more important than the duty they are supposed to perform. Where is the country heading at? The Supreme Court in Prakash Kadam v. Ramprasad Vishwanath Gupta, reported in (2011) 6 SCC 189, has answered that behind the growing lawlessness it could see the looming danger of matsanyaya (in the absence of the king wielding the rod of punishment, the strong devour the weak like big fish eat the smaller fish).
53. To maintain social order and to ensure the safety and security of the citizens is one of the paramount duties of the State. To a large extent that is achieved by the police by enforcing law and order. There has been a rise in shameful speeches delivered by politicians encouraging 40 crime in this State, but in most cases the police has looked the other way. The apathy and indifference of the police not to swing into action immediately points to the depths of lawlessness that the State has touched. The present case is no exception.
54. The speech delivered by Mr. Paul is outrageous and surpasses all bounds of civility, and it is indeed unfortunate that the matter has travelled to this Court. For the greater interest of the State in general and the people in particular, the civil administration ought to have been well-advised to take action in accordance with law to avoid litigation. The need to be so vocal would not have arisen, but for the irresponsible stand taken by the State. I do sincerely hope that another occasion to deal with such a situation would not arise.
55. The Court has its limitations, and it is well-nigh difficult for the Court to singlehandedly clean the administration of all evils. However, there has to be a beginning and let this be an eye-opener for politicians like Mr. Paul that howsoever high they might be, the law is above them and even though they may have the tamed police by their side, the judiciary is ever vigilant and would not 41 allow the extreme lethargy and indolence of the police to be condoned and the errant politicians go scot-free.
56. It would thus not be in the best interest of society to shrug off the exhortations of a political leader as his emotional outbursts and to relegate the petitioner to the forum available under the Code of Criminal Procedure. The second w.p. is, thus, entertained.
57. Now comes the question of interim relief. Although I had reserved my order on the point of interim relief, it appears to me of little use to call for a counter affidavit from the State having regard to the stand taken by it that the written complaint of the petitioner does not disclose any cognizable offence warranting registration of an FIR. The version of the State being known, an interim order has to be made on such terms to sub-serve justice, although such order in effect might lead to grant of the principal relief claimed in the writ petition.
58. The Inspector-in-Charge, Nakasipara Police Station, shall immediately but not later than 72 hours of service of an authenticated website copy of this order upon him register an FIR on the basis of the complaint dated July 1, 2014 lodged by the petitioner. Having regard to the sensitivity involved, it would further be in the interest of 42 justice to entrust the C.I.D. to investigate the complaint. The Director General of Police shall issue appropriate instructions to the DIG, C.I.D. for a free, fair, proper and meaningful investigation of the FIR.
59. At this stage by directing registration of an FIR the Court is not concerned with the merits of the accusations or the individuals alleged to be involved but only with the performance of the legal duty by investigating agencies fairly, properly and meaningfully for investigating into the accusations that have been made and to take the investigation to its logical conclusion in accordance with law. In view of the stand taken by the State that no cognizable offence was committed by Mr. Paul, I am sceptical about effective progress of investigation should the writ petition be disposed of. This is an exceptional case and in view of the decision in Vineet Narain v. Union of India, reported in (1998) 1 SCC 226, I propose to keep it pending for effective monitoring of the investigation by the Court upon being apprised of the developments in regard to investigation. Since the investigation would be monitored by the Court, the investigating officer shall not file the police report under 43 Section 173(2) Cr. P.C. without obtaining the leave of Court.
60. Put up W.P. 20515(W) of 2014 under the heading 'To Be Mentioned' on September 1, 2014 for the investigating officer to be appointed to submit a report on the progress of investigation.
Photocopy of this judgment and order duly countersigned by the Assistant Court Officer shall be retained with the records of W.P. No. 20515 (W) of 2014. Urgent website copy of this judgment and order, duly countersigned, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 44