Rahul Gandhi vs The State Of Assam And Anr
2024 Latest Caselaw 5413 Gua

Gauhati High Court

Rahul Gandhi vs The State Of Assam And Anr on 1 August, 2024

                                                                           Page No.# 1/6

GAHC010152672024




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./283/2024

            RAHUL GANDHI
            S/O LATE RAJIV GANDHI
            R/O 10 JANPATH, NEW DELHI-110001, UNDER TUGHLAK ROAD POLICE
            STATION, NEW DELHI.



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PP, ASSAM

            2:SRI ANJAN KUMAR BORA
             S/O LATE PUSHPENDRA NATH BORA
            R/O HOUSE NO. 2
             JANA PATH
             OPPOSITE KENDIRYA VIDYALAYA
             KHANAPARA-781022
             P.S. DISPUR
             GUWAHATI
             KAMRUP (METRO)
            ASSA

Advocate for the Petitioner   : MR. A M BORA, MR. D K BAIDYA,MR. D GAGAI

Advocate for the Respondent : PP, ASSAM,
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                                 BEFORE
              HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                      ORDER

Date : 01.08.2024

Heard Mr. A.M. Bora, learned Senior Counsel for the petitioner Sri Rahul Gandhi, who has filed this application under Sections 438/442 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS for short) challenging the impugned order dated 13.05.2024 passed by the learned Additional Chief Judicial Magistrate, Kamrup (M) at Guwahati in C.R. case No. 559/2016 and the impugned judgment and order dated 22.09.2023 passed by the learned Court of Additional Sessions Judge No. 2, Kamrup (M) in connection with Criminal Revision No. 26/2023.

2. Heard Mr. M. Phukan, learned Public Prosecutor, Assam for the respondent State.

3. Vide order dated 13.05.2024 passed by the learned Chief Judicial Magistrate, the Trial Court allowed the complainant arrayed as respondent No. 2, Sri Anjan Kumar Bora to examine 3 (Three) witnesses, in addition to the listed witness mentioned in the complaint petition registered as C.R. case No. 559/2016, which was passed in compliance with the impugned judgment and order dated 22.09.2023 in Criminal Revision No. 26/2023.

4. The complaint is registered under Sections 499/500 of the Indian Penal Code, 1860 (IPC for short), which is a summons procedure case. The allegation against the petitioner is that he was on a two-day visit and took part in Padyatra from Barpetra to Medhirtari, and addressed a public rally. The petitioner during his visit falsely alleged publicly that he had been prevented by the RSS members from entering into the Barpeta Satra and this statement has been published in Page No.# 3/6

the Times of India, Delhi Edition published on 15.12.2015. It is submitted that to out manoeuvre the sentiments of the public who were waiting for him at the Satra, the petitioner had made such false statements. Instead of visiting the Satra the petitioner took a different route while the Burha Satradhikar and the ladies including many others were waiting for arrival of the petitioner.

5. It is submitted that so far 7 (Seven) witnesses have been examined by the Trial Court but while the witnesses were being examined, the respondent No. 2 filed a petition, more particularly, Annexure - III, with prayer to examine the 3 (Three) additional witnesses.

6. It is averred that the petition was filed without any provisions mentioned in the petition, and the Trial Court had passed the order dated 18.03.2023 in CR Case No. 559/2016, rejecting the petition by observing that the reason shown for calling the 3 (Three) witnesses were not specific. The only reason shown by the complainant for calling the 3 (Three) witnesses were addressed in an omnibus manner that they were in a position to know the facts of the case. Even if it is accepted that the witnesses are the persons who are acquainted with the facts of the case, then also there remains doubt regarding the intention of the complainant as they were not cited as witnesses in the complaint petition. It is further submitted that it was correctly observed by the Trial Court that the fact that these persons were aware of the facts of the case, was not known to the complainant from the inception and there is no reason ascribed for making the prayer to add these 3 (Three) witnesses. It was observed that there may be many members of the RSS and many police officials who are acquainted with the facts and if the complainant is allowed to bring such witnesses, it will be an unending process.

7. It is further contended by the learned counsel for the petitioner that the Page No.# 4/6

complainant has not filed the complaint petition under Section 499/500 of the IPC against any political party but the complainant has filed the petition in his own capacity, alleging defamation of the political party by the petitioner. It is further averred that not a single witnesses out of the 7 (Seven) witnesses have even mentioned the names of the witnesses (i) Dr. Bhupesh Sharma, (ii) Sri Prashant Buzar Baruah, and (iii) Siladitya Chetia (now deceased). Thus, it is apparent that after cross examination of the 7 (Seven) witnesses, now to fill in the lacunae, the complainant has filed a petition without mentioning the provisions to examine the above-named witnesses. Not a single witness has named the above-named witnesses and it is surprising why the complainant, almost at the end of the trial has proposed to examine the above-named witnesses.

8. It is submitted that after cross examination of the 7 (Seven) witnesses at this juncture if the complainant is allowed to examine the witnesses, the petitioner will be highly prejudiced as there is every possibility of fabrication against the petitioner.

9. The petitioner has also relied on the decision of the Hon'ble Supreme Court in Mohanlal Shamji Soni Vs. Union of India and Another reported in (1991) Supp (1) SCC 271 wherein it has been observed that :

"18. The next important question is whether Section 540 gives the court carte-blanche drawing no underlying principle in the exercise of the extraordinary power and whether the said section is unguided, uncontrolled and uncanalised. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially Page No.# 5/6

and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."

10. The learned counsel for the petitioner has impugned the judgment dated 22.09.2023 passed by the learned Additional Sessions Judge No. 2, Kamrup (M) in Criminal Revision No. 26/2023 wherein it was observed that the complainant found the examination of the 3 (Three) additional witnesses necessary in view of what has come out during the trial.

11. Against these observations it has been averred on behalf of the petitioner that not a single witness has mentioned the name of the additional witnesses in the trial and there is not even a whisper in the evidence about the witnesses in the trial but the order dated 18.03.2023 passed by the Trial Court was set aside by observing that it has surfaced in the trial that the evidence of the witnesses are necessary. It is further submitted that this case is fixed for evidence on 03.08.2024. It is further submitted that the petitioner will be highly prejudiced if the 3 (Three) witnesses are allowed to be examined by the Trial Court.

12. Considering all aspects, at this stage, it appears that there is a prima facie case to stay the proceeding at least till the next date of listing. Call for the scanned copies of the Trial Court Records.

13. Issue notice to the respondent No. 2 through registered post with A/D as well as through usual process returnable on 02.09.2024.

14. The learned Additional Public Prosecutor has accepted notice on behalf of the respondent State and thus no formal notice is required to be issued.

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However, sufficient copies to be furnished during the course of the day.

15. Meanwhile, the proceeding of the C.R. Case No. 559/2016 pending in the Court of learned Additional Chief Judicial Magistrate, Kamrup (M) at Guwahati is stayed till 02.09.2024.

List accordingly.

JUDGE

Comparing Assistant