On 3rd August, Gauhati High Court quashed Magistrate orders to register a First Information Report (FIR) against Assam Chief Minister Dr Himanta Biswa Sarma in an alleged hate speech case. The Magistrate orders came on the complaint of Assam Congress MP Abdul Khaleque for a speech at CM Biswa’s game in the backdrop of the Sipajhar eviction drive in September 2021.
In a speech in Morigaon district after the eviction drive, CM Sarma referred to the incidents of violence as “revenge” for the eviction. In his order, Justice Ajit Borthakur said the Magistrate seemed to have passed the order of registering an FIR against CM Sarma in a hurry without hearing what he said or what police officers found during the investigation. Earlier, police officials said in their report that no cognisable offence was made out during the speech by CM Sarma.
Justice Borthakur said, “The learned Magistrate seems to have hurriedly passed the impugned order on 05.03.2022 on the same day of receipt of the petition on transfer to his Court for disposal, after hearing the complainant side only, which certainly occasioned a gross failure of justice and abuse of the process of the Court.”
The High Court observed that the words used by CM Sarma in the matter could not be deemed as “communally inflammatory”. Justice Borthakur added, “The whole text of the speech in question did not bear any word or sentence which can be termed as communally inflammatory speech attracting any penal cognisable offence.”
Calling it an error of judgment by the Magistrate, High Court opined that the order was passed “without properly considering the allegations” against the Chief Minister. Though Magistrates have the power to direct probe the petitions under Section 156(3) of the Criminal Procedure Code, that does not mean that police must register an FIR.
The court noted that Khaleque narrated the speech in a conjecturable manner inter alia, terming it as ‘maliciously given a communal colour’ with reference to the alleged killings of Moinul Hoque and Sheikh Farid’ and other incidents.
Furthermore, the High Court remarked that the investigation of the complaint made it clear that no cognisable offence was made against the CM that would have led to the registration of a criminal case against him. The court said, “[it] contains apparently different narration of facts overlapping each other, clouding the multifarious allegations generated therein, which cannot be construed to have disclosed any cognisable offence to the police, requiring to be mandatorily registered.”
Gauhati magistrate’s orders to register FIR
In 2022, the Gauhati magistrate court ordered police to file a criminal complaint against CM Sarma over allegedly inflammatory remarks in the speech from December 2021. Following the orders, the Assam government and the Guwahati police moved to Gauhati High Court, challenging the orders.
Notably, in a report, Deputy Commissioner of Police, East District, Guwahati City Police Commissionerate, Kamrup(M), Assam, said, “During enquiry the audio clipping of the comments given in a public meeting in Morigaon district is collected for ascertaining the truth of the allegation if any cognizable offence is made out on prima facie basis. The enquiry has been conducted thoroughly taking note of every aspect meticulously. However after making a thorough enquiry and detailed examination of the speech made by the honourable CM, I found no any offence appeared to be committed by the honourable CM of Assam for creating disharmony among the different communities of Assam in absence of specific reference to the name of any particular community. The speech so delivered carried neither any provocation nor incitation against one community with others. The statement so delivered carried only the past history what the bonafide assamese people had faced. The entire version delivered by honourable CM of Assam was of creative nature wherein no matter was there affecting interest of the other community.”
In the order, Kamrup Metro district Sub-Divisional Judicial Magistrate B Baruah observed the police needed to register FIR against CM Sarma. The order came on the complaint of Khaleque, who had said CM Sarma’s remarks that “events at Gorkhuti an act of ‘revenge’ for 1983, the Hon’ble Chief Minister is giving wanton provocation to people to commit further acts of rioting against the particular community of the
state.” He added that CM Sarma’s remarks were “intending to cause disharmony or feelings of enmity, hatred or ill-will towards the Muslim population of Assam.” He sought FIR against CM Sarma at Dispur Police Station under Sections 153 and 153A of the Indian Penal Code (IPC).