Gauhati High Court quashes Magistrate order for hate speech FIR against Assam CM Himanta Biswa Sarma

The Gauhati High Court recently quashed a lower court order directing the registration of a first information report (FIR) for the offence of hate speech against Assam Chief Minister Dr Himanta Biswa Sarma over remarks made by him about violence that took place in the wake of the Sipajhar eviction drive in September 2021. [State of Assam and ors vs Abdul Khaleque and anr].In a speech delivered at Morigaon district after the eviction drive, Sarma had allegedly referred to the incidents of violence as an act of revenge.Justice Ajit Borthakur of the Gauhati High Court on Thursday (August 3), held that the Magistrate seemed to have hurriedly passed its order for the registration of an FIR without hearing the Chief Minister or the police officers who had earlier found that no cognisable offence had been made out."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 gross failure of justice and abuse of the process of the Court," the High Court said. .Pertinently, Justice Borthakur observed that the words used by the CM in this case cannot be deemed 'communally inflamatory'."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 cognizable offence," the order stated. The High Court opined that the Magistrate made an error of judgment and passed its order without properly considering the allegations against the Chief Minister. The High Court explained that petitions under Section 156(3) of the Criminal Procedure Code, which empowers Magistrates to direct probes into cognisable offences, cannot be interpreted strictly to mean that the police must register an FIR.The High Court added that on a perusal of the complaint, it was crystal clear that there was no cognisable offence made out against the Chief Minister to warrant the registration of a criminal case by the police. "[it] contains apparently different narration of facts overlapping each other clouding the multifarious allegations generated therein, which cannot be construed to have disclosed any cognizable offence to the police, requiring to be mandatorily registered," the Court said. .Advocate General Devajit Saikia along with Public Prosecutor M Phukan appeared for the Assam government.Advocate S Nawaz appeared for the original complaint, MP Abdul Khaleque.Advocate Padmini Baruah represented Dr. Himanta Biswa Sarma..Last year, a Gauhati magistrate court had asked the police to lodge a criminal complaint against Sarma over allegedly inflammatory remarks in a speech he made in 2021.This led to the Assam government and the Guwahati Police moving the Gauhati High Court in appeal, challenging the magistrate court order. In his order, Kamrup Metro district Sub-Divisional Judicial Magistrate B Baruah had observed that it was mandatory for the police to have registered an FIR in connection with Sarma's December 2021 speech.The order was passed on a complaint by Abdul Khaleque, Member of Parliament (MP) from Assam's Barpeta Lok Sabha constituency.It was alleged that the Chief Minister, through his remarks, intended to disturb the already fragile communal fabric in the State.The complainant had sought the registration of an FIR against Sarma at the Dispur Police Station for offences under Sections 153 (wantonly giving provocation with intent to cause riot) and 153A (promoting enmity between different groups and doing acts prejudicial to maintenance of harmony) of the Indian Penal Code (IPC).At least two persons had been killed in police firing and twenty injured in clashes at Gorukhuti between security forces and occupants, during the eviction drive across villages at Sipajhar in Darrang district on September 23, 2021.The High Court had, on October 7, directed the State of Assam to file a detailed affidavit on the incident, orally taking note of a gruesome video that had gone viral on social media.The video showed a photographer stomping violently on the body of a man who was shot to death..[Read order]