JUDGMENT :

(Ananya Bandyopadhyay, J.) :

1. Kotwali P.S. Case No. 325/2021 dated 06.05.2021 under Sections 504/505/506/120 of the Indian Penal Code 1860 was instituted on the basis of a complaint dated 06.05.2021 filed by the defacto complainant Anirban Sarkar inter alia alleging to have noticed certain comments on the Facebook profile of Pradip Basunia, Uttam Mondal, Tapaas Karmakar, Ashim Roy, Adaitya Barman which were “spreading communal hatred and violence amongst the people of society,” which according to him were “unauthentic, uncalled for and unwarranted.”

2. The petitioner has filed the instant Criminal Revisional Application seeking for a direction from this Court to quash the aforesaid Kotwali P.S. Case corresponding to G. R. Case No. 577 of 2021 pending before the Court of the Learned Chief Judicial Magistrate, Sadar, Cooch Behar.

3. The Learned Advocate for the petitioner submits the petitioner, an Assistant Teacher of a school by profession has been falsely implicated due to rival political ideologies with an ulterior motive of wrecking vengeance on frivolous ground.

4. The Learned Advocate for the petitioner further submitted that the petitioner has been arraigned as an accused for commission of offences punishable under Sections 504/505/506/120B of the Indian Penal Code and all the offences except Section 505 of the Indian Penal Code are non-cognizable. The Officer in Charge has failed to specify as to under which clause of Section 505 the First Information Report has been lodged and since all other offences under which the instant criminal proceedings has been initiated are non-cognizable in nature, the instant case is liable to be quashed as the procedure prescribed under Section 155 of the Code of Criminal Procedure has not been followed.

It was further submitted the allegations stated in the First Information Report do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code of Criminal Procedure, except under an order of a Magistrate within the purview of Section 155(2) of the Code. All offences under which the First Information Report has been registered are non-cognizable and the procedure under Section 155 of the Code of Criminal Procedure dictates that if the offences are non-cognizable offences, the Officer-in-Charge of the police station shall enter or cause to be entered the substance of the information in a book to be kept by such Officer in such form as the State Government may prescribe in this behalf, and refer ‘the informant/opposite party no.2 to the Jurisdictional Magistrate. When a police officer does anything which he is not empowered to do, he cannot be said to act under the colour of his office. A bare perusal of the offences with which the petitioner was charged denote such offences under the Indian Penal Code to be non-cognizable offences, apart from one part of Section 505 of the Indian Penal Code and therefore the police could not, of its own, commence investigation on any of such allegations.

5. It was further contended, the controversial social media post was uploaded by one Ashim Roy and the petitioner was merely tagged in the said post due to which the said post was appearing on the Facebook profile of the petitioner herein. The petitioner was neither the creator of the post neither did he intent to spew any religious hatred with the intent of causing rites amongst the different communities in the State of West Bengal. There was no intention on the part of the petitioner to promote class/community hatred and since there was no attempt made by the petitioner to incite people belonging to a community to indulge in any violence, the basic ingredients of the offence under Section 505 of the Indian Penal Code have not been made out. The allegations made in the FIR or the complaint, even if they are taken on their face value do not prima facie constitute any offence or make out a case against the accused, the criminal proceedings i