The Bombay High Court on Wednesday refused to grant relief to West Bengal Chief Minister (CM) Mamata Banerjee in her plea seeking quashing of the criminal complaint filed against her by a Bharatiya Janata Party (BJP) leader for allegedly disrespecting the National Anthem saying that there was no patent illegality in the case.
Justice Amt Borkar dismissed Banerjee’s application challenging a January order of the sessions court sending the matter back to the magistrate's court for inquiry and on the issue of issuance of summons.
'Sessions court ought to have quashed the entire complaint'
Banerjee, founder chairperson of the All India Trinamool Congress, claimed that the sessions court, instead of quashing the summons and remitting the matter, ought to have quashed the entire complaint.
Justice Borkar observed that no fault can be found with the order passed by the sessions court remitting the matter back to the magistrate's court for fresh inquiry and to decide on the issuance of process (summons) afresh. Hence the HC need not interfere. “In my opinion there is neither error of jurisdiction or patent illegality in the present case. Criminal application is dismissed,” said the judge.
The sessions judge had noted that the magistrate had not complied with the mandate of sections 200 and 202 of the Code of Criminal Procedure and hence sent the matter back. Under these sections, a magistrate can postpone the issuance of summons in a case and carry out an inquiry herself or himself or direct the police station concerned in cases where the person against whom action is sought resides outside the territorial jurisdiction of the magistrate.
Majeed Memon, Banerjee’s counsel, argued that an inquiry under these sections would cause unnecessary harassment and embarrassment to the CM, who is a public servant.
However, refusing to accept the argument, Justice Borkar said that the purpose of holding an inquiry under these sections is to decide whether there is sufficient ground to proceed against the accused.
The judge said: “Direction to hold such an inquiry does not cause any prejudice to the accused. Ultimately if it is found after holding such an inquiry that no case is made out, the magistrate is bound to pass order in accordance with law.”
The court also did not agree with Memon’s arguments that the sessions court in its order has observed that the ingredients of section 3 (preventing or causing disturbance while singing the national anthem) of the Prevention of Insults to National Honour Act were not made out in the present case.
“The applicant (Banerjee) has misread the sessions court order. There is no finding recorded by sessions court that offence under section 3 is not made out,” noted justice Borkar. The high court added that the sessions court had only said that the magistrate was not justified in issuing process (summons) only on the ground that inquiry under sections 200 and 202 was not done.
Referring to a Supreme Court judgment, the HC said that it was not correct for a sessions court in revision to consider the whole complaint on merits and dismiss the same on merits. Further, it is a well-settled position in law that until the court issues a summons, the accused person has no right to participate in the proceedings before the magistrate, said HC.
In March 2022, a magistrate court in Sewree issued a summons to Banerjee on the complaint filed by BJP member, advocate Vivekanand Gupta, alleging that during a public function at Yashwantrao Chavan Auditorium at Cuffe Parade in Mumbai, Banerjee had started singing the National Anthem in the sitting position and later stood up and sung two verses of the anthem before abruptly stopping and leaving the venue.
Banerjee challenged this before the sessions court, which, in January set aside the summons but remanded the matter back to the magistrate to consider it afresh.
She had challenged this before the HC.
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