Conduct Of Judicial Officer Must Be Above Personal Whims And Traits: Gauhati HC While Quashing Case Against CM Himanta Biswa Sarma

The Gauhati High Court has quashed a case relating to the alleged violation of the model code of conduct by Assam Chief Minister Himanta Biswa Sarma during the 2019 Lok Sabha polls.

A single bench of Justice Rumi Kumari Phookan quashed the case and set aside all the proceedings under the Representation of People's Act as well as impugned orders of the Chief Judicial Magistrate of Kamrup Metropolitan.

On the Magistrate's Court imposing a cost of Rs.2,000 for non-appearance against the CM despite there being "justifiable ground", the Court held that there being no willful negligence on the part of the CM in his appearance before the Court and the CM not being a defaulter, there cannot be any reason for imposing cost. "The Magistrate has totally failed to discharge its judicial discretion while conducting a proceeding. The conduct of a judicial officer must be above the personal whims and traits and every order should be founded on cogent and reasonable grounds, which is not reflected in the present case. It is said "justice should not only be done but also seen to be done", the Court held.

"In view of the legal proposition discussed above, the impugned order of taking cognizance by the learned trial court is nothing but a mechanical one, without due application of judicial mind, which is bad in law," the Court held.

The case was filed by the Additional Chief Electoral Officer in May 2019 against Sarma, who was a minister in the then chief minister Sarbananda Sonowal's government, and News Live TV channel for allegedly violating the model code of conduct during the Lok Sabha polls.

The Chief Judicial Magistrate of Kamrup Metropolitan, AK Baruah, on February 25 had imposed a fine of Rs 2,000 on Sarma and his wife Riniki Bhuyan Sarma, who is the chairman-cum-managing director of News Live channel, and ordered the duo to appear before the court on March 21.

Challenging this order and appealing to quash the case, Sarma approached the high court on February 28 and filed a criminal petition.

The High Court also noted that the prohibition imposed by the Election Commission is applicable to the polling area during the 48 hours ending with the hour fixed for conclusion of the poll for any election in that area.

"In the present matter, at the time of news telecast in Guwahati on 10.04.2019, no polling was scheduled to take place in Guwahati on the next 48 hours because as per the notification poll was scheduled to be held on 23.04.2019 in Guwahati," it said.

"Obviously, while passing the aforesaid order, the learned CJM, has exceeded the jurisdiction. Being an officer of justice delivery system, no one can conduct the affairs of the prosecution as an inquiry officer," the High Court said.

As the original complainant did not pursue the matter nor produced the relevant documents, as directed, such a complaint is liable to be dismissed for non-prosecution, it added. The High Court asserted that a court of law is never assigned to undertake an inquiry to pursue a matter with the higher authority as has been revealed from various orders in this case.

"Accordingly, all these orders suffer from serious illegality," the Court said.

During the first hearing of the petition on March 2, Justice Phookan had stayed all the proceedings of the case that was going on at the Court of the Chief Judicial Magistrate (CJM) and called all the records.

The CM had filed the petition against the Election Commission of India (ECI), Chief Election Commissioner, Senior Principal Secretary of the ECI, the State Election Department, Chief Electoral Officer and Vibekananda Phookan, who was the then Additional Chief Electoral Officer in May 2019.

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With PTI inputs