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Judgment
Akil Kureshi, CJ
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.