Gauhati High Court
Subal Kumar Dey vs State Of Tripura on 11 January, 2007
Equivalent citations: 2007CRILJ1195, 2007(2)GLT798
ORDER A.B. Pal, J.
1. The petitioner-Subal Kumar Dey is the Editor and Publisher of the Bengali daily named "Syandam Patrika" printed, published and circulated from Agartala. One Yudhisthir Ray lodged a complaint on 8-5-1997 in Chebri Police Station under Khowai Sub-division against Mr. Dey that his newspaper published a news item on 25-2-1997 that some explosives had been recovered from the house of a person named Ganga Charan Debbarma who was the relative of the then Chief Minister, which was false and fabricated. According to the informant the said news item was published with a view to malign the democratically elected Chief Minister and to incite disharmony between the tribal and the Bengali communities. The written complaint was registered as Kalyanpur P.S. Case No. 46 of 1997 under Ss. 501, 505(l)(b)(c), 153, 153-A and 120-B of the Indian Penal Code. The investigation following the said FIR found prima facie evidence resulting to submission of a charge-sheet against Mr. Dey, the petitioner herein. On the prayer of the petitioner the case was transferred from the Court of Judicial Magistrate, Khowai to the Court of Chief Judicial Magistrate, Agartala. On 30-6-2000 Mr. Dey submitted a prayer for his discharge on the ground that the criminal proceeding against him was not maintainable in law as no personal injury was caused to the informant. The prayer for discharge was dealt with by the learned Chief Judicial Magistrate in his order dated 7-8-2001, While rejecting the prayer the trial Court observed that the charge-sheet was filed against the accused-petitioner under Ss. 153-A, 505(l)(b)(c) of the Indian Penal Code in support of which sufficient materials exist on record. It was further observed that both the provisions being analogous the alleged offence had to be understood after ascertaining whether the news item was published and circulated to excite commotion and create communal disharmony and whether such news was false and fabricated. The learned Court felt that at the stage of taking cognizance on the basis of the police report it was not possible to come to a definite finding whether the accused had published the news item without deliberate and malicious intention. At such a stage the Court would just consider if there was ground for presuming that the accused had committed an offence. According to the learned trial Court at the stage of cognizance there is no scope to record a conclusion that the materials on record are not likely to lead to conviction at the end of the trial. After taking a view that it will be premature to say that there is no sufficient materials against the accused, the petition for discharge came to be rejected. Aggrieved, the accused-petitioner by means of this revision petition under Ss. 397 and 482 of the Criminal Procedure Code called in question the correctness and validity of the said order dated 17-8-2001 of the learned Chief Judicial Magistrate with a prayer for setting aside the said order and discharge the accused from the said proceeding.
2. I have heard Mr. A. K. Bhowmik, learned senior counsel and Mr. S. Ghosh, learned Counsel for the petitioner. I have also heard Mr. R. C. Debnath, learned Special P.P. for the respondent.
3. The news item which is a foundation of the present proceeding needs to be noticed at the outset. The English version of the same given in Annexure-3 to which no dispute was raised reads thus:
The para-military forces have unearthed a Blue Print of a plan of the terrorist in the Khowal town. Conversation of the extremists in Kokborak was heard in the wireless set of the BSF". The security forces came to know that the extremists' activities were being controlled from the office Tilla, which is the main center of the sub-division's administrations. The most thrilling incident is that the tribal students and employees residing in the vicinity of the town were used to hide arms and ammunitions in their houses. This was known from the letters recovered from the house of a teacher who died recently. Those letters contained directions for almost all tribal students to keep arms in their houses. By following the clues from the letters one or more houses were searched, where holes especially in Ganki to hide arms and ammunitions were discovered. These holes are 8 inches long and 6 to 10 inches wide. The para-military force came to know that in arms trading and stocking. Ganga Charan Debbarma s/o Paresh Debbarma of Ramchandraghat has a leading role. Said Ganga Charan is the nephew of Chief Minister Dasarath Deb. Some carbines were recovered from Ganga Charan's house. Those were kept Inside a safely locker beneath the earth adjoining the tube well in his house.
Those recovered carbines are now in possession of Kalyanpur Police Station. One influential section is continuously pursuing the police for the purpose of proving Ganga Charan innocent and also trying to cause disappearance of those recovered arms. The security forces also came to know that Tapan Debbarma. employee of State Bank of India. Khowai branch and one Bidya Debbarma are engaged in arms trade and dealing. Last year said Bidya Debbarma was arrested along with a pistol while operation 'Roukhala' called by ATTF was going on. On the other hand, Assam Rifles apprehended two women students based on a specific complaint from Hathkata area. Those apprehended are students of Khowai Higher Secondary School. They are today sent to Agartala. The Assam Rifles jawans did flag march in khowai today. According to the news received in the dead of nights of 21st, 22nd and 23rd of January a numberless red Maruti used to go by the road adjoining AOC office and Khowai airport area and also used to cross a wooden bridge and then go for an unidentified place. The security forces came to know that this red Maruti is engaged in arms dealing. On the other hand the tribal miscreants today burnt down the houses in East Ratiya colony under Kalyanpur P.S. The miscreants while looting goats by showing country made rifles were chased by CRPF jawans. A person named Prabodh Choudhury. noticed a gang of tribal youths dressed in Assam Rifles uniform while they were moving in Laltilla and place adjoining to Novodoy Vidyalaya. Prabodh Babu went to bring goods from his deserted house. He then informed this to the nearby CRPF camp. The miscreants left the place through Ampura before the CRPF reached the spot. Fear stroke in the area after the tribals youth in Assam Rifles uniform were seen.
The Addl. P.M. ASP and SDPO all rushed to the spot. On the one hand, like yesterday, today also the refugees stationed in Shrikrishna Girls School when went to their deserted houses in Kamnipara faced violence against them. A group of youths under Bhakta Debbarma and his son Padma Debbarma warned the refugees by whistling and then started firing at them. No report of wounds of killing came in. Today also 8 refugees from various camps suffering from enteric are admitted in Khowai Sub-divisional Hospital. According to Govt. sources. 4.278 people from 987 families have left refugee camp. Those left the camp mainly belonged to tribal community.
On the other hand, although the conversation between the extremists in Kokbarak language was caught one or more times, in wireless sets or BSF, yet their wireless set in office tilla is out of order. It is suspected that somewhere from office tilla, the extremists communicated in various places by applying a powerful wireless set. It is suspected that anybody highly trained in radar engineering may be helping the extremists.
4. A careful reading of the above news item would immediately give the impression that it narrated a situation arising out of communal riot between tribals and non-tribals in the said area and recovery of arms. The charge-sheet and statements of witnesses recorded during investigation support the fact that at that time there was a communal riot which rendered many people homeless. It is not unlikely that at the time of such communal disharmony persons belonging to the rival communities would collect and possess arms. Ganga Charan Debbarma himself informed in his statement recorded under Section 161, Cr. P.C. that after reading the news item that certain carbine was recovered from his house he lodged a protest which was also published in the said newspaper. He stated nothing about his sustaining grievance after publication of his protest. He however, has not clarified why he himself did not lodge any complaint and whether he did at all authorise the informant to make a complaint on his behalf. One Asit Baran Ghosh stated that there was a gossip at the relevant time about recovery of some carbine from the house of Ganga Charan Debbarma and he heard such discussion in Loknath Sweet Shop. According to him the protest letter from Ganga Charan was mild and evasive, which was published in the said newspaper followed by some remarks. He further stated that the administration has suppressed real fact and Ganga Charan Debbarma remained silent in his protest letter about recovery of carbine from his house. All the witnesses including police officer have supported the facts narrated in the news item except the part about recovery of carbine from the house of Ganga Charan Debbarma. The investigating police officer himself stated that at that time 15 criminal cases had to be registered in connection with communal riot. None of the said records were available to definitely take a view that in none of the said cases there is any material to show that no recovery of carbine was made from the house of Ganga Charan Debbarma. Again Ganga Charan Debbarma himself admitted that he is distantly related to Dasharath Deb, the then Chief Minister and, therefore, this part of the news item cannot be said to be false. The highlighted portion of the news item states that the para-military forces came to know that Ganga Charan Debbarma had a leading role in trading and stocking arms and he is the nephew of the Chief Minister Dasharath Deb. None of the para-military force personnel has been examined during investigation to ascertain whether such recovery was at all made. The news item further stated that Tapan Debbarma and Bidya Debbarma were also engaged in arms trading and dealing and Bidya Debbarma was arrested along with pistol when operation "Roukhala" called by ATTF (an extremist outfit) was going on. It is also not in dispute that large number of people had to take shelter in refugee camps. This being the situation the newspaper published what was going on at the relevant time and name of three persons including Ganga Charan Debbarma who were allegedly dealing with fire arms. Ganga Charan Debbarma himself or other persons like Bidya Debbarma, Tapan Debbarma, Bhakta Debbarma and Padma Debbarma did not lodge any complaint alleging that what was published in the said news item was false or concocted. It is thus not clear what prompted informant Yudhisthir Ray to make the FIR stating that the news item had intentionally maligned Ganga Charan Debbarma or the then Chief Minister Dasharath Deb.
5. The charge-sheet having been filed under Ss. 153-A and 505(b)(c) of the Indian Penal Code it is to be seen whether the nature of offences contemplated thereby have been prima facie made out by the news item in question. Prompting disharmony or feeling of enmity, hatred or ill-will between different communities which is likely to cause fear or alarm or induce any person to commit any offence against public tranquillity are sought to be covered by the above two provisions. This being the common feature of both the provisions it is necessary that at least two groups or communities should be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract the provision of Section 153-A or 505. In the entire news item there is no reference to two communities for the purpose of inciting the feeling of one community against the other. It only narrated about para-military forces operating in that area and recovering certain arms from the possession of persons including Ganga Charan Debbarma. Except the activity of the para-military force and the role of certain persons including Ganga Charan Debbarma there is nothing to incite any community against the other.
6. In Azizul Haq Kausar Naquvi v. State , the Allahabad High Court held in para 57 thus:
57. It is thus firmly established both in India and in England, that criminality for the offence of blasphemous libel, or criminality under Section 153-A of the Indian Penal Code, does not attach to the things said or done but to the manner in which it is said or done, If the words spoken or written are couched in temperate, dignified, and mild language, and do not have the tendency to insult the feelings or the deepest religious convictions of any section of the people, penal consequences do not follow.
As seen above, nothing in the news item has been written in a manner, which has tendency to incite the feelings of one community against the other. It is a simple narration of the activities of para-military forces, discovery of certain arms and role of certain persons.
7. Regarding the power of the High Court under Article 226 of the Constitution or under Section 482 of the Criminal Procedure Code the Apex Court in State of Haryana v. Ch. Bhajan Lal held that only to prevent abuse of the power of any Court or otherwise to secure the ends of Justice the High Court can exercise powers very sparingly. The categories of cases where the High Court can interfere and quash the proceeding as noted on para 108 are as follows:
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously Instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
8. The legal position set out above, when applied for scrutiny of the allegation made in the FIR and the charge-sheet, it would unmistakably show that the allegation that the news item in question maligned the Chief Minister and prompted disharmony between tribals and Bengalies is not borne by any iota of evidence. There is no direct or indirect hint about two communities fighting each other and the statement that Ganga Charan Debbarma is related to the then Chief Minister Dasharath Deb (who is no more) is found correct from the statement of Ganga Charan Debbarma himself. Neither Dasharath Deb or any of his legal heirs nor Ganga Charan Debbarma made any allegation that they were maligned by the said news item or what was narrated had the ingredients of causing disharmony between the tribals and the Bengalies. No statement from any para-military force who allegedly recovered carbine has been recorded to establish that no recovery of carbine from the house of Ganga Charan Debbarma was at all made. Even if the statement about the recovery of Carbine from the house of Ganga Charan Debbarma is found to be not correct, it cannot be said that such wrong statement caused or was likely to cause disharmony between two communities. Thus, before registering a case on the basis of the allegation made by Yudhistir Ray, the contents of the news item should have been carefully gone into by the Investigating Officer to satisfy himself whether ingredients constituting offences under Ss. 153-A and 505 of the Indian Penal Code were prima facie present. Freedom of expression which includes freedom of press being one of the cardinal principles of a democratic polity would be the casualty if such unfounded allegation is quickly taken cognizance of without carefully examining the contents. In my considered view this is a fit case in which this Court should step in to prevent the abuse of the process of Court. It needs no emphasis to observe that the Court below while making the impugned order failed to comprehend that the news item in question had nothing to incite or promote disharmony between two groups of people.
9. For the reasons and discussions aforementioned this criminal revision petition is found to have merit and accordingly the same is allowed. The impugned order dated 17-8-2001 is hereby set aside and quashed. The accused-petitioner stands discharged and is set at liberty.