Tripura People'S Front (Tpf) And ... vs The State Of Tripura And Another
2021 Latest Caselaw 1054 Tri

                                Page 1 of 8



                      HIGH COURT OF TRIPURA
                        _A_G_A_R_T_A_L_A_
                         WP(Crl) No.02 of 2021
Tripura People's Front (TPF) and others

                                                    ......Petitioner(s)

                                 VERSUS

The State of Tripura and another

                                                    ......Respondent(s)
                      B_E_F_O_R_E_
       HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
      For Petitioner(s)          : Mr. Manish Goswami, Advocate,
                                   Ms. S. Debbarma, Advocate,

      For Respondent(s)          : Mr. S. Kar Bhowmik, Special P.P.,
                                   Mr. Anirban Bhattacharjee, Advocate.
      Date of hearing            : 9th September, 2021

      Date of Order              : 11th October, 2021.

                                ORDER

Petitioners have invoked the inherent jurisdiction of the High

Court under Section 482 of Code of Criminal Procedure and under Article

226 of the Constitution of India and prayed for quashing and setting aside

various first information reports filed against the petitioners in relation to

the alleged incidents of 25.11.2020 of blocking the National Highway No.8

during the 12 hours Tripura bandh called by an organization referred to as

Tripura People's Front (TPF, for short). The FIRs of were registered for

offences under Sections 143, 341, 506 etc. IPC read with Section 8-B of the

National Highway Act, 1956. The gist of FIRs is substantially similar.

From the record we may note the contents of an FIR dated 25.11.2020 filed

by one Shri Ajit Das, ASI, Garjee outpost under R.K. Pur Police Station,

Udaipur, Gomati which reads as under :

"Sir, With due respect I have the honour to report to you that, I ASI(UB) Ajit Das of Garjee OP do hereby lodge Suo-moto complaint on behalf of the State Government to the effect that today on 25.11.2020 myself along with staff were performing mobile duty from 0535 hrs on NH-08 road under Garjee OP and while reached at Dab Bazar at about 0600 hrs and observed that the below noted FIR named A/P's along with others blocked the NH-8 road in support of 12 hrs to 1800 hrs Band called by TPF Supremo Patal Kanya Jamatia w.e.f. 0600 hrs to 1800 hrs. I have asked them to withdraw their Tripura Band as early as possible and also requested them to open the road for frequent movement of the vehicle as well as public. But all of them deny to withdraw their Tripura Band and also they will not open the National Highway upto 1800 hrs. While the below noted persons found any vehicle and pedestrian try to pass the area at that time the below noted A/P's a/w others threaten the public with dire consequences. In this regards all of the FIR named A/P's along with others have committed cognizable offence. Under the above fact and circumstances a specific FIR may kindly be register U/S 143/341/506 IPC & US-8B of the National Highway Act 1956 against the below noted FIR named A/P's and others and thus obliged."

During the pendency of this petition, the investigation was

completed and barring in few cases where the police did not find any

material, charge-sheets were filed in the rest. The petitioners, therefore, had

amended the petition including their challenge to the charge-sheets also.

Case of the petitioners is that on 16.11.2020 members of

two local organizations namely Nagarik Suraksha Mancha and Mizo

Convention under the banner of joint movement committee had called for a

strike at Kanchanpur in North District to protest against the permanent

resettlement of Bru migrants. This movement later on spread to other parts

including in Panisagar and other areas of Kailashahar in Unakoti district.

On 21.11.2020 the protesters had blocked National Highway No.8 at

Panisagar where the protests turned violent. During this violence one

Biswajit Debbarma who was working as a Fire Service officer in the Fire

Department of the State Government was attacked while he was heading

towards his home. He succumbed to the injuries. This incident was

captured in video recording. Wife of the deceased had filed an FIR on

23.11.2020. Since there was no serious progress in the investigation,

Tripura People's Front, the petitioner No.1 called for a 12 hour Tripura

bandh on 25.11.2020 to mark their protest against the brutal killing of

Biswajit Debbarma and the official apathy of the police department in the

investigation. Another similar bandh call for 24 hours was given on

23.12.2020 demanding arrest of the accused persons involved in the murder

of Biswajit Debbarma.

According to the petitioners, these protests were all

throughout totally peaceful and the members and sympathizes of TPF were

behaving in a most disciplined manner. The administration in order to

crush the democratic peaceful protests started lodging criminal complaints

against the members of the organization. Many of them were also arrested.

According to the petitioners, the FIRs do not disclose commission of

cognizable offence, even if all the allegations made in the FIR are taken on

face value. Applying the principles of the judgment of the Supreme Court

in case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp.(1)

SCC 335 the FIRs should be quashed. Counsel submitted that once it is

found that the FIRs do not disclose commission of any offence, protecting

the charge-sheets on the ground that during investigation culpability of the

accused was revealed, would amount to abuse of process of criminal law.

Counsel for the petitioners had also argued that the investigation has also

not revealed any culpability of any of the accused and the charge-sheets

should also therefore be quashed.

Counsel submitted that right to protest peacefully is part of

the fundamental rights guaranteed under Article 19(1) of the Constitution.

The entire FIR and the charge-sheet are based on the premise that the

petitioners had carried out such protests. Without there being any criminal

element, mere act of peaceful protesting would not constitute any offence

either under the Indian Penal Code or under the National Highway Act or

any other penal statute.

On the other hand, the case of the State administration

presented by the special counsel Shri Samrat Kar Bhowmik is that the

petitioners do not have unlimited right to protest. Such right is hedged by

legal limitations. Blocking the National Highway itself constitutes an

offence. In many cases such protest was even otherwise not peaceful.

Violent incidences had occurred. He also argued that each FIR rests on its

own individual facts. The charge-sheets filed upon completion of

investigation are based on different materials. One common petition

challenging the validity of all FIRs and the charge-sheets is therefore not

maintainable.

The State-counsel did not contend that once investigation is

over and charge-sheet is filed power under Section 482 of Cr.P.C cannot be

exercised by the High Court. He, however, submitted that the charge-sheets

can be quashed only if it is demonstrated ex facie that on the basis of

material collected by the investigation no offence can be said to have been

committed.

Both sides have referred to and relied upon several

decisions of the Supreme Court in support of their contentions. At one

stage I was of the opinion that the petition can be disposed of finally at the

admission stage itself. However, I find that there are certain legal issues of

considerable importance which require closer examination and more

minute legal scrutiny. It is, therefore, not necessary in this order to refer to

all the authorities cited by advocates of both sides.

The petitioners have heavily relied on the decision of the

Supreme Court in case of Himat Lal K. Shah versus Commissioner of

Police, Ahmadabad and another reported in (1973) 1 SCC 227 to contend

that right to protest peacefully in public places and streets is part of the

fundamental right. The respondents, besides others have placed reliance on

the judgment of the Supreme Court in case of Mazdoor Kisan Skakti

Sangathan versus Union of India, reported in (2018) 17 SCC 324.

Section 8-B of the National Highways Act provides for

punishment for mischief by injury to National Highway and reads as under:

"Whoever commits mischief by doing any act which renders or which he knows to be likely to render any national highway referred to in sub-section (1) of Section 8-A impassable or less save for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both."

As per this provision thus whoever commits mischief by

doing any act which renders or which he knows to be likely to render any

national highway referred to in sub-section (1) of Section 8-A impassable

or less safe for travelling or conveying property shall be punished with

imprisonment as provided under the said Section. Prima facie the act of

mischief by doing anything which renders or which a person knows to be

likely to render any national highway impassable or less safe for travelling

or conveying property would constitute an offence under Section 8-B. The

offence of mischief is defined under Section 425 of India Penal Code. As

per this provision, whoever with intent to cause or knowing that he is likely

to cause wrongful loss or damage to the public or to any person, causes the

destruction of any property or any such change in any property or in

situation thereof as destroys or diminishes its value or utility or affects it

injuriously commits mischief.

In this context the question therefore would arise is whether

mere act of a bandh call and blocking of a highway would constitute the

offence punishable under Section 8-B of the National Highways Act,

without any element of mischief. Petitioners would undoubtedly argue that

the foundational ingredient of the offence under Section 8-B is the

commission of act of mischief by the accused and this term "mischief"

must be one defined under Section 425 of India Penal Code. They would

also argue that whatever be the limits of the right to hold protests, if the

protests are not coupled with the act of mischief, offence under Section 8-B

of the National Highways Act cannot be stated to have been committed. On

the other hand, the State would argue that the mere fact of blocking the

National Highway making it impossible for the normal traffic to move

smoothly is an act of mischief and even otherwise falls within the purview

of Section 8-B of the National Highways Act 1956. This question

undoubtedly is important and not possible of an easy answer. It would

require testing the contours of the right to protest and its limitations with

the aid of the decisions of the Supreme Court on the point. These issues

require further examination and in my opinion looking to the importance of

the issues and larger ramifications, such examination should be by a

Division Bench.

Let this petition therefore be admitted for final hearing to be

notified on 6th December, 2021. To be placed before Division Bench that

may be constituted by the Chief Justice on the administrative side. Both

sides may provide second set of documents on record. Till final disposal

further proceedings arising out the FIRs their charge-sheets have been filed

shall stand stayed.

(AKIL KURESHI), CJ

Dipesh.