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18.08.2015

W.P. 19084 (W) of 2015

Bharatiya Janata Party & anr.
vs.
The State of West Bengal & anr.
Mr. Phiroze Edulji
Mr. Rajdeep Biswas
Mr. Ajay Chaubey
Ms. Alotriya Mukherjee
Mr. Animesh Sanyal
....for the petitioners.
Mr. Abhrotosh Majumder
Mr. T. M. Siddiqui
.......for the respondents.
1. This writ petition dated August 5, 2015 is at the
instance of Bharatiya Janata Party (hereafter BJP) and
its

office

secretary.

The

petitioners

have

alleged

inaction of the Officer-in-Charge, Jorasanko Police

Station (hereafter the said O.C.) in taking steps for
registration of an FIR on the basis of complaints dated
June 23, 2015 and June 25, 2015 in relation to a
perceived hate speech delivered by a Member of
Parliament

(hereafter

the

said

member)

owing

allegiance to the political party in power in this State,

while addressing a public rally in Basirhat, Dist. 24

Parganas (North) on June 22, 2015. Accordingly, they

have prayed for relief as follows:
a) issue a writ and/or order and/or direction in the
nature of Mandamus, directing the issue a writ in
the nature of Mandamus, transferring the written
complaint dated 23rd June 2015 and further
information lodged on 25th June 2015 by the
petitioner with the Jorasanko Police Station, to the
any other investigation agency, for dealing with the
same in accordance with law;
b) issue a writ and/or order and/or direction in the
nature of Mandamus, directing the respondent no. 2
to be personally present and explain why in spite of
the order dated 10th April 2014 passed by Honble
Justice Dipankar Datta in W.P. No. 965(W) OF 2014
Mira Banerjee & Anr. v. The State of West Bengal &
Ors. being duly communicated to the respondent
no. 2 there has been a Wilful Disobedience of the
said order by the respondents;
****
2. The complaint dated June 23, 2015, copy whereof is
available at page 52 of the writ petition, appears to
have been lodged by Mr. Kamal Beriwala, Secretary,
BJP, West Bengal and National Executive Member,
BJP, and received at Jorasanko Police Station on June
23, 2015 at 16.00 hours. It is revealed therefrom that
the said member had openly instigated his workers by
urging them to gouge out the eyes and to cut off the
hands of anyone who wishes to glare at the people of
Bengal and that each one of them must be reminded
that the people of Bengal have the last word so long the
present incumbent holds office as Chief Minister of

West Bengal. The complainant felt insecure and

threatened by such statement of the said member and,
accordingly, requested the said O.C. to treat the
complaint as an FIR against the said member.
3. The aforesaid complaint was followed by a complaint
dated June 25, 2015 of Mr. Ashim Sarkar, General
Secretary, BJP, West Bengal, titled additional written
information of cognizable offences committed by ... In
continuation of the earlier complaint, Mr. Sarkar
sought to provide instances of multitude of hate
speeches delivered by political leaders owing allegiance
to the ruling party in the State. Apprehending serious
trouble and chaos insofar as law and order situation is
concerned, the said O.C. was requested to investigate
the complaint upon treating it as an FIR in terms of the
decision of the Supreme Court reported in (2014) 2
SCC 1 (Lalita Kumari v. Government of Uttar Predesh
& ors.).
4. Mr. Edulji, learned advocate for the petitioners, while
referring to various provisions of the Code of Criminal
Procedure (hereafter the Cr.P.C.) as well as the
decisions in Lalita Kumari (supra) and in W.P. 965(W)
of 2014 (Mira Banerjee & Anr. v. The State of West

Bengal & Ors.) dated April 10, 2014 rendered by this

Bench, contended that section 115 of the Indian Penal
Code (hereafter the IPC) was attracted (abetment to
commit offence, although the offence may not have
been committed) and there being disclosure of a
cognizable offence, it was the statutory duty of the said
O.C. to register an FIR as the preliminary step for
proceeding with investigation as ordained by the
Cr.P.C.
5. Mr. Edulji also relied on the decision of the Supreme
Court reported in AIR 1967 SC 553 (Jamuna Singh v.
State of Bihar), for the proposition that section 115 of
the IPC stands on its own feet even though nothing
might have happened in consequence of abetment.
6. The writ petition was opposed by Mr. Majumder,
learned Government Pleader. He first invited the
attention of this Bench to a complaint dated June 23,
2015 lodged by Mr. Subhrajit Bhattacharya, District
Secretary, BJP, 24 Parganas (North), addressed to the
Inspector-in-Charge, Basirhat Police Station (hereafter
the said inspector). Referring to the same speech
delivered by the said member, it was urged by the
complainant that an FIR ought to be registered against

the former under sections 504/506/500, IPC. Since

the complaint of Mr. Bhattacharya disclosed noncognizable offences and the said inspector being
disabled to conduct investigation without an order of
the relevant magistrate, an entry was made in the
general diary [Basirhat Police Station G.D. Entry No.
1653 dated June 23, 2015]; that, subsequently, several
other complaints containing similar allegations having
been received, further G.D. entries were made on June
24, June 26 and June 27, 2015 culminating in
submission of a prayer before the Additional Chief
Judicial Magistrate, Basirhat (hereafter the ACJM) for
permission to enquire under section 155, Cr.P.C. in
relation

thereto;

that,

on

July

15,

2015,

upon

consideration of the prayer of the police, the ACJM

granted

necessary

permission

for

enquiry

under

section 155, Cr.P.C. and called for a report on July 31,

2015; that, a report was received from the investigating
officer on July 21, 2015, which was directed to be kept
with the record by the ACJM and for being put up on
July 31, 2015, as directed earlier; and that, on perusal
of the report the ACJM by an order dated July 31,
2015 accepted the same and directed the same to be

kept with the record. It was contended by Mr.

Majumder that if at all the petitioners are aggrieved by
such order of the ACJM dated July 31, 2015, their
remedy lies elsewhere and not before the writ court.
7. Secondly, it was contended by Mr. Majumder that a
writ petition [W.P. 15268(W) of 2015 : Biplab Kumar
Chowdhury v. State of West Bengal & ors.] had been
moved before this Bench by a so-called public spirited
citizen claiming that by delivering the hate speech, the
said member had committed offences punishable
under sections 115/141/153A/503/504/505 and 506,
IPC and that direction ought to be given to the said
inspector to register an FIR on the basis of the
complaint dated June 25, 2015. The said writ petition
had been considered by this Bench on July 22, 2015
and Mr. Majumders submission that the matter had
been

referred

to

the

learned

Magistrate

having

jurisdiction was recorded. He further pointed out that

having regard to the fact that the police was not found
to be completely inactive and further having regard to
the observation that whether or not the speech
delivered by the said member amounts to a hate
speech would require thorough examination, this

Bench had refused to entertain the writ petition and

had granted liberty to the said petitioner to pursue his
remedy provided by the Cr.P.C. Relying on such
decision,

he

reiterated

his

submission

that

the

petitioners ought to pursue their remedy under the

Cr.P.C.
8. Finally, Mr. Majumder contended that the writ petition
should be dismissed for suppression of material facts
by the petitioners. Referring to various paragraphs of
the writ petition, he sought to demonstrate that
although it is the specific claim of the petitioners that
the said O.C. had remained inactive despite receipt of
the complaints dated June 23, 2015 and June 25,
2015 disclosing commission of cognizable offence by
the said member, they had deliberately withheld an
important fact. According to him, the copy document at
page 52 of the writ petition being the written complaint
of Mr. Beriwala is, in fact, a tampered document.
Developing his argument on the point, he produced an
extract from the general diary maintained at Jorasanko
Police Station bearing no. 1763 recorded at 16:25
hours on June 23, 2015. It was recorded therein as
follows:

One Kamal Beriwala, S/o-G.D. Beriwala of 167,

C.R.Avenue Kol-07, came to the P.S. and submitted
a letter against Shri Abhishek Banerjee of A.I.T.M.C.
for giving a public speech at Basirhat on
22.06.2015. he alleged that Shri Abhishek Banerjee
gave out threats at the said public meeting.
As the allegation is non-cognizable in nature and as
the place of occurrence falls within the jurisdiction
of Basirhat P.S., Shri Kamal Beriwala was requested
to submit the complaint at Basirhat or concerned
P.S.
9. Mr. Majumder submitted that an endorsement of
Jorasanko Police Station G.D. Entry No. 1763 dated
June 23, 2015 was duly made on the receipted copy
together with the seal of Jorasanko Police Station,
which had been effaced while making photocopy of the
receipted complaint for being annexed to the writ
petition. He urged the Bench to call upon Mr. Edulji to
produce the receipted copy. Mr. Majumder confidently
submitted that the receipted copy, in original, would
definitely bear the endorsement of the G.D. entry.
10. It was also submitted by Mr. Majumder that the
complaint lodged before the said inspector at Basirhat
by the other wing of the first petitioner had also been
suppressed in the writ petition and there being an
attempt to mislead this Court, the writ petition ought
to be summarily dismissed.

11. Hearing was, accordingly, adjourned for the day and

Mr. Edulji was called upon to produce the receipted
copy, in original, on the following day.
12. The receipted copy, in original, was produced by Mr.
Edulji before the Bench and on perusal thereof, the
submission of Mr. Majumder, made on the earlier day,
was found to be absolutely correct. Finding himself on
soft soil, Mr. Edulji sought to explain and justify as to
why and how copy of the receipted copy in original was
not annexed to the writ petition.
13. Assuming that a mistake on the part of someone as
submitted by Mr. Edulji resulted in omission to annex
the copy of the original receipted copy of the complaint
in its entirety bearing the endorsement of the G.D.
entry and the seal, no explanation worth the name has
been advanced as to why in the body of the writ
petition the facts that the general diary entry bearing
no. 1763 having been made by Jorasanko Police
Station and lodging of the complaint at Basirhat Police
Station by another wing of the first petitioner were not
disclosed and by painting a totally contrary picture of
culpable inaction of the said O.C. referring to the

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decisions in Lalita Kumari (supra) and Mira Banerjee

(supra), an attempt to mislead the Court was made.
14. To err is human, but it has to be remembered that this
is not a writ petition at the instance of a stranger or a
busybody attempting to gain cheap popularity by
espousing a pretended public cause; it is inter alia at
the instance of a political party which, in the
parliamentary elections last conducted in the country,
was successful in emerging as the party having the
maximum number of representatives in the Lok Sabha
and is also part of the ruling dispensation at the
Centre. Invocation of extra-ordinary writ jurisdiction of
a high court by a political party of the stature of the
first petitioner, not being unmindful of the influence
that it wields on the common people, pertaining to a
sensitive issue in such a disorganized manner and
with such a casual approach not only merits to be
deprecated but the time is now ripe, when the Courts
in India are faced with a deluge of litigation from
aggrieved persons seeking justice and the Courts are
hard pressed in listening to the grievance of each one
of them, to send a strong signal that the Courts are
not the place for settling political scores and that

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wastage of judicial time, though nominal in measure,

would not be tolerated. This Bench has no hesitation
to hold that not only should this writ petition be not
entertained in view of the developments post the
decision in Biplab Kumar Chowdhury (supra) but the
petitioners ought to suffer exemplary costs so as to
remind the first petitioner that howsoever strong and
mighty it is in the political scene, it must respect the
laws of the country while seeking to invoke the extraordinary jurisdiction of the Court and not suppress
facts or produce a tampered document to suit its end.
15. The writ petition, accordingly, stands dismissed. The
petitioners shall pay, as costs, Rs. 5,00,000/- each to
the West Bengal Legal Services Authority and the
Calcutta High Court Legal Services Committee within a
month from date, failing which the State shall be
entitled to recover the costs from the petitioners in the
manner mandated by law.
Urgent photostat certified copy of this order, if applied
for, shall be furnished to the applicant at an early date.

(DIPANKAR DATTA, J.)

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