The Gauhati High court observed that trial court has overstepped in the side of the complainant, which are not healthy affairs for a court of law.

Assam chief minister Himanta Biswa Sarma had approached Gauhati High Court seeking ‘criminal revisions’.

The chief judicial magistrate’s court in Kamrup Metropolitan summoned him for appearance relating to a case by the state election department pertaining to violation of model code of conduct during the Lok Sabha election in 2019.

The chief minister’s petition has named the Election Commission of India as one of the six respondents in the case. A summons was issued to Sarma however he failed to appear before the court of Kamrup (metropolitan) CJM on February 25.

Sarma’s counsel in the court submitted that he was preoccupied with his official duty with the President of India and is not in a position to appear.

The President visited Assam last month. Second summon was issued and he is asked to appear on March 21. Complaint was filed by Assam Pradesh Congress Committee president on April 11, 2019 where he alleged that Sarma, who was finance and health minister violated the model code of conduct by giving live interview to to local channel within 48 hours of the 1st Phase of Polls. State Election department filed the case against Sarma on May 14, 2019.

The CJM on February 11 stated that this act of the accused though he was/ is the Minister/ Chief Minister of State of Assam, does not come under his official duty. Hence, sanction is not required before issuing summons to Himanta Biswa Sarma as an accused in this case, and there is no bar to proceed against the accused.

The learned counsel for the petitioner has placed reliance on documents that have been annexed with the petition, to submit that the learned trial Court has crept into serious illegality in taking cognizance of the offence, inasmuch, as in passing of the orders, which reflects from various orders.

It has been contended that the learned trial Court failed to take into consideration that the third Phase of Polling was scheduled to be held on 23.04.2019 in Dhubri, Kokrajhar and Guwahati, as per the notification issued by the Election Commission of India and the alleged Live Interview was telecasted on 10.04.2019, when there was no Polling as per the notification in the next 48 hours, to attribute any misconduct on the part of the petitioner for violation of the Model Code of Conduct.

Justice Rumi kumari Phukan stated that apart, it appears that the learned trial Court, has, however, overstepped in the side of the complainant, which are not healthy affairs for a Court of law (the orders reflect).

“Furthermore, it appears that in the last order dated 25.02.2022, while the Court accepted the cause of absence of the complainant, who was stated to be busy in election duty, but refused to accept the ground that was given on behalf of the accused petitioner, who was busy with the Hon’ble President of India. Perhaps, this aspect was known to all the citizens of Assam that on the very day, the Hon’ble President of India was in Assam for 3 days tour and the petitioner being the Chief Minister of Assam, was present with the Hon’ble President of India, and his absence before the Court cannot be viewed with serious complicity and particularly, a petition was also moved on behalf of the petitioner, assigning reasons. In that view of the matter, imposition of cost appears to be not on lawful consideration, ” The court observed.

The court stated that serious aspect of law and other related issues have been raised in the present petition, which deserves consideration of this Court. Considering all entirety of the matter, the impugned order(s) so passed by the Court and the entire proceeding pertaining to CR Case No. 1843c/2019, is hereby stayed, till the returnable date.