The Supreme Court on Friday set aside an order of the Calcutta High Court which had said that West Bengal Police can register an FIR against BJP leader Suvendu Adhikari if it is satisfied that offence was made out, on a complaint accusing him of promoting enmity between different groups.
Observing that it would have been appropriate for the high court to grant Adhikari the opportunity to file a counter affidavit to the petition, a bench headed by Chief Justice DY Chandrachud requested the chief justice of the high court to hear the plea afresh.
It said the chief justice-led bench of the high court shall be at liberty to pass appropriate order in the petition after hearing all the objections, if any, of Adhikari both on the merits and maintainability of the plea.
"In our view, it would have been appropriate for the high court to grant the petitioner (Adhikari) some opportunity to file a counter affidavit to the writ petition before issuing interim directions of the nature which effectively grant the relief which has been sought in the petition itself," said the bench, also comprising justices JB Pardiwala and Manoj Misra.
"We request the chief justice of the High Court of Calcutta to hear the... afresh and to facilitate this, the order dated July 20, 2023 shall stand set aside," the bench said.
The top court order came while hearing a plea by Adhikari, who is the Leader of the Opposition in the West Bengal Assembly, challenging the July 20 order passed by a division bench of the high court.
In its order, the court noted that counsel representing West Bengal has stated that in pursuance of the July 20 order of the division bench of the high court, an FIR has been registered and a report will be submitted to the high court as directed.
The bench observed that it was not necessary for the Supreme Court to express any view on the submissions which have been urged by Mr Adhikari's counsel with regard to the manner in which the plea was taken up for hearing on July 20 in the high court.
It also referred to the two orders passed by a single judge of the high court on September 6, 2021 and December 8, 2022 which had said that no FIRs shall be registered and no coercive steps can be taken against Adhikari.
Mr Adhikari had claimed that frivolous cases were being filed against him ever since he quit the state's ruling TMC and joined the BJP.
On July 20, a division bench of the high court had dealt with a plea which alleged that Mr Adhikari has committed an offence under section 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, and doing acts prejudicial to maintenance of harmony) of the Indian Penal Code (IPC).
In its order, the division bench had said the petition be treated as a complaint to the police authority and the state police shall exercise powers in accordance with the law and carefully examine whether the acts narrated in it disclose any offence under section 153-A of the IPC.
"If they are so satisfied they will register the first information report under section 154 of the Criminal Procedure Code," the high court had said.
In its order, the division bench of the high court had said, "The first information reports so registered, if any, along with his views and result of investigation, if any, shall be embodied in a report to be prepared by the Director General of Police and to be furnished before this court on the returnable date of this application." It had said Mr Adhikari's arrest or any other coercive action against him can only be made in terms of the report if leave is granted by the high court.
The plea before the high court had said the state police authority was not registering any complaint or FIR against Mr Adhikari because of the orders passed in September 2021 and December 2022 by a single judge in two separate writ applications.
Mr Adhikari's counsel had earlier told the top court that the BJP leader was protected by the September 6, 2021 and December 8, 2022 orders of the high court according to which no further FIRs could be registered against him.
