The Bombay High Court on Wednesday refused to grant relief to West Bengal Chief Minister Mamata Banerjee in a complaint seeking action against her for allegedly disrespecting the national anthem at an event here, noting that there was no need for interference in the matter.

A single bench of Justice Amit Borkar dismissed the application filed by Banerjee challenging a sessions court order of January 2023 remitting the matter back to the magistrate’s court for inquiry and on the issue of issuance of summons.

Banerjee in her application said the sessions court instead of quashing the summons and remitting the matter ought to have quashed the entire complaint.

The high court held that no fault can be found with the order passed by the sessions court remitting the matter back to the magistrate’s court for fresh inquiry and to decide on the issuance of process (summons) afresh. Hence the HC need not interfere, said Justice Borkar.

The sessions court while quashing the summons and remitting the matter back had noted that the magistrate's court had not complied with the mandate of sections 200 and 202 of the Code of Criminal Procedure.

Under these sections, a magistrate can postpone the issuance of summons in a case and carry out an inquiry herself or himself or direct the police station concerned in cases where the person against whom action is sought resides outside the territorial jurisdiction of the magistrate.

Banerjee’s lawyer Majeed Memon said holding an inquiry under these sections would cause unnecessary harassment and embarrassment to the CM, who is a public servant.

Justice Borkar, however, refused to accept this argument and said the purpose of holding an inquiry under sections 200 and 202 is to decide whether there is sufficient ground to proceed against the accused.

“Direction to hold such an inquiry does not cause any prejudice to the accused. Ultimately if it is found after holding such inquiry that no case is made out, the magistrate is bound to pass order in accordance with law,” the HC said.

Justice Borkar also refused to accept Memon’s argument that the sessions court in its order has observed that the ingredients of section 3 (preventing or causing disturbance while singing the national anthem) of the Prevention of Insults to National Honour Act were not made out in the present case.

“The applicant (Banerjee) has misread the sessions court order. There is no finding recorded by sessions court that offence under section 3 is not made out,” Justice Borkar said.

The high court added that the sessions court had only said that the magistrate was not justified in issuing process (summons) only on the ground that inquiry under sections 200 and 202 was not done.

The court referred to a Supreme Court judgment that said it was not correct for a sessions court in revision to consider the whole complaint on merits and dismiss the same on merits.

“Order of issuance of process was faulted only on ground of section 200 and 202. In my opinion, the course adopted by sessions judge of not deciding the matter on merits and remitting matter back to the magistrate's court was in consonance with the SC order and hence no fault can be found," Justice Borkar said.

“Therefore, no interference is required. The application is dismissed,” the court said.

The bench further held that it is well settled position in law that until the court issues summons, the accused person has no right to participate in the proceedings before the magistrate.

A magistrate's court had in March last year issued summons to Banerjee on the complaint filed by one Vivekanand Gupta alleging that during a public function at Yashwantrao Chavan Auditorium at Cuffe Parade in Mumbai, Banerjee had started singing the National Anthem in the sitting position and later stood up and sung two verses of the anthem before abruptly stopping and leaving the venue.

The chief minister had challenged the summons before the special court.

In January 2023, special Judge R N Rokade set aside the summons issued by the magistrate on procedural grounds and had asked the magistrate to consider the complaint afresh.

Banerjee, who is also the founder chairperson of the All India Trinamool Congress, in her application in HC challenged this order claiming that the summons ought to have been quashed instead of directing the magistrate to consider the same afresh.

Gupta in his complaint claimed that Banerjee's act amounted to an insult and disrespect to the national anthem and was hence an offence under the Prevention of Insults to National Honour Act of 1971.

Gupta first filed a complaint in the Cuffe Parade police station. After no action was taken by the police on it, he filed a complaint before the Metropolitan Magistrate.

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