29 March 2023 6:55 AM GMT
The Bombay High Court on Wednesday dismissed the criminal application filed by West Bengal's CM Mamta Banerjee seeking to quash the complaint filed against her for allegedly disrespecting the National Anthem in 2022.Banerjee had assailed an order of the Sessions Court which though set aside the order of issuance of process against her for offence under Section 3 of Prevention of Insults...
The Bombay High Court on Wednesday dismissed the criminal application filed by West Bengal's CM Mamta Banerjee seeking to quash the complaint filed against her for allegedly disrespecting the National Anthem in 2022.
Banerjee had assailed an order of the Sessions Court which though set aside the order of issuance of process against her for offence under Section 3 of Prevention of Insults to National Honours Act, but remitted the proceedings back to magistrate to comply with procedure under 200 (verification) and 202 (police inquiry) of CrPC.
"In my opinion, the course adopted by Sessions judge of not deciding the matter on merits and remitting matter back is in consonance with the judgment of Supreme Court...Therefore, no interference is required," Justice Borkar observed.
The complaint pertains to Banerjee's official visit to Maharashtra on November 30 and December 1, 2021. She was speaking at a gathering in Cuffe Parade, Mumbai.
According to complainant, BJP's Vivekanand Gupta, Banerjee disrespected the National Anthem by singing the first two stanzas in a sitting position, standing up for the next two stanzas and leaving the gathering abruptly.
The Metropolitan Magistrate had issued process against Banerjee in March 2022.
In a criminal revision application, the Sessions Court set aside the summons and remanded the matter back for fresh adjudication by the Magistrate.
Banerjee assailed this order before the High Court seeking quashing of the matter entirely under Section 482 of the CrPC.
Banerjee through her advocate Majeed Memon claimed that the Sessions Court had recorded a finding that essential ingredients of Section 3 have not been fulfilled and therefore no purpose would be served by remitting proceedings back to magistrate.
Moreover, holding inquiry under Section 202 CrPC would cause unnecessary harassment to the public servant, as the complaint filed is with the oblique motive of publicity.
The court noted that the issue involved in the application is whether the revisional court while remitting complaint back is entitled to consider merits of the complaint.
"The Supreme Court has held that this is not correct. In view of this judgment, in my opinion no fault can be found with the course adopted by the sessions court," the High Court said.
The court noted that once the order of issuance of process is set aside, Banerjee cannot be termed as an accused. "It is well settled that until the court issues process the accused has no right to participate in the proceedings before magistrate," it added.
The purpose of holding the inquiry under Section 202 is to decide whether there is sufficient ground to proceed against an accused; and the direction to hold such an inquiry does not cause any prejudice to the accused, the court observed.
Ultimately if it is found after holding such inquiry that no case is made out, the magistrate is bound to pass order in accordance with law, the judge said.
The court noted that Banerjee had misread the order of.the sessions court with regard to non-fulfilment of Section 3.
"There is no finding recorded by sessions court that offence under Section 3 is not made out. The sessions court was considering necessity hold inquiry under 202 and in that context it has held that the magistrate was not justified in issuing process," Court said.
Case Title: Mamata Banerjee Vs Vivekanand Dayanand Gupta & Anr. [Criminal Application No.311 Of 2023]
Citation: 2023 LiveLaw (Bom) 167
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