The Mumbai metropolitan magistrate was “not justified” in issuing summons to West Bengal Chief Minister Mamata Banerjee in a matter pertaining to alleged disrespect to the national anthem, a special court observed while setting aside the summons.
Special judge for cases against MPs and MLAs, R N Rokade, on January 12 set aside the summons against CM Banerjee and referred the matter back to the magistrate for a fresh review of the facts in the light of the complaint.
The detailed order was made available on Tuesday.
A Mumbai court in February 2022 issued a summons to Banerjee and directed her to appear before it on March 2 after the city unit BJP functionary, Vivekanand Gupta, approached the magistrate’s court with a complaint claiming the West Bengal chief minister had shown disrespect to the national anthem during her visit to the Maharashtra capital.
In the order setting aside the summons against CM Banerjee, the special court said under Section 200 of the CrPC (Criminal Procedure Code) on the presentation of the complaint by an individual, other than a public servant, the magistrate is required to examine the complainant on the solemn affirmation and witnesses present if any.
However, in a case in which the accused is residing at a place beyond the area in which the magistrate exercises his jurisdiction, it is mandatory to hold an inquiry or the investigation he thinks fit to decide whether or not there is sufficient ground for proceeding.
The special court said the provisions of section 202 of the CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of the process where the accused resides in an area beyond the territorial jurisdiction of the magistrate concerned.
“In the case at hand, the magistrate relied upon the statement of the complainant in the form of an affidavit which is contrary to the provision under Section 200 of the CrPC. Apparently, it seems that the magistrate deviated from the mandatory provisions as laid down under Sections 200 and 202 of the CrPC,” the special court said.
“Having regard to the entire gamut of the circumstances including nature of the allegations, the material placed in support of it and improper verification of the complainant, I am of the considered view that the magistrate is not justified in issuing process against the accused,” the special judge added.
The judge also said a proper course would be to remit the matter back to the metropolitan magistrate with direction to comply and adhere to the procedure mandated under sections 200 and 202 of the CrPC.
“…And then to afresh apply his mind to the facts of the case so as to determine whether a prima facie case to the offence as alleged against the accused in the said complaint, warranting issuance of the process, is made out, after providing an opportunity of hearing to the complainant,” the judge noted.
Vivekanand Gupta had approached the metropolitan magistrate’s court at Mazgaon in December 2021 with a complaint against CM Banerjee, who is also head of the Trinamool Congress (TMC). He demanded an FIR be registered against her under the Prevention of Insults to the National Honour Act.
The magistrate court had said sanction was not required as Banerjee was not discharging her official duty when the alleged incident happened.
“Though the accused is the chief minister of West Bengal, she was not discharging her official duties (during the event in Mumbai). Thereby, this act of the accused, though she is the chief minister of West Bengal, does not come under her official duty. Therefore, the sanction is not required and there is no bar to proceed against the accused,” the magistrate’s court had said.
The West Bengal chief minister subsequently filed a review petition before the special court challenging the order of the magistrate’s court.
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