People Have Right To Criticize Dispensation Running The Country, Being Legislature, Executive Or Judiciary: Calcutta HC [Read Order]

The Calcutta High Court has restrained the State authorities from taking any coercive measure against journalist, Sanmay Banerjee, in connection to a forgery and defamation case. Alleging human rights violation, Banerjee had moved the high court against investigation and his detention under Sections 465, 469, 500, 504 and 505(1)(b) of IPC and Section 66 of the IT Act. He had been accused of manipulating documents, including some forged appointment letters issued by the West Bengal Board of Primary Education and to have used them to malign the government through his YouTube channel. Banerjee said that the complaint was a result of his acts of exposing corruption in political quarters. He alleged that he was arrested by the Officer‐in‐Charge of the Khardah Police Station, along with "hoodlums of the local ruling party", and was subjected to tremendous torture and was forced to admit to guilt, against all established norms of human rights. Arguments Asking the court to quash the FIR and the consequent investigation ongoing against him, he contended that the above mentioned charges did not disclose a cognizable offence and thus an investigation by police officers could be done only under an order of a Magistrate, passed under Section 155(2) of CrPC. He pointed out that the FIR was registered on the basis of a complaint lodged by the Assistant Public Prosecutor of the Raghunathpur Court, having no locus standi, as he was in no way connected with the allegations. He then contended that the Police action was in complete violation of the law of the land, as laid down by the Supreme Court in Arnesh Kumar v. State of Bihar & Anr., (2014) 8 SCC 273, as he was not given any notice under Section 41A of CrPC. In the said ruling, the Apex Court had stipulated that notice of appearance in terms of Section 41A of the CrPC has to be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for reasons to be recorded in writing, in case of offences having punishment of less than seven years of imprisonment. Moreover, it was held that failure to comply with the directions aforesaid shall, apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court, to be instituted before the High Court having territorial jurisdiction. On the strength of the aforesaid arguments, he contended that his arrest and detention was illegal and that his freedom of speech and expression, as engrafted in Article 19(1)(a) of the Constitution of India, had been squarely violated. Findings Finding itself in concurrence with the Petitioner's submissions, the court said that the police could not have investigated the Petitioner under Section 156(1) of the CrPC, except under an order of a Magistrate within the purview of Section 155(2) of the CrPC. "A bare perusal of the offences with which the petitioner was charged shows that all offences under the IPC were non‐cognizable offences, apart from Section 469 of the IPC, which was cognizable but bailable. As such, the police could not, of its own, commence investigation on any of such allegations," Justice Sabyasachi Bhattacharyya said. Refuting the Respondent's argument that the Petitioner had other remedies in law viz. Section 173(3) for further investigation, Section 221 for alteration of charges and Section 222 for remission of the offences to minor ones, the court said, "…commencement of the investigation was beyond the jurisdiction of the police and was based on entirely fictitious and baseless allegations, there cannot arise any question of the investigation proceeding even for a moment, since the investigation was bad ab initio. Subsequent damage control exercises under the quoted provisions would be a mere autopsy after the damage was already done by subjecting a free citizen of India to unnecessary investigation and torture, unlawfully restraining him and putting at stake her/his personal liberty and freedom of speech and expression at the drop of a hat." It also agreed that registration of a complaint at the behest of the APP, who was in no way connected with the alleged offences, or with the victim of any of those, defied all logic. "the action of the police in the present case appears to be patently mala fide and reeks of political rather than legal motivation, in view of all the persons who were alleged to be victims of the petitioner's act in the complaint belonging to the present ruling dispensation of the state and the complaint being lodged by an Assistant Public Prosecutor of the Raghunathpur court, who ought not to be affected in any manner with, or even any basis of knowledge of, the offences alleged, particularly those of forgery, unless the complainant perceived an allegiance owed by him to his political...

People Have Right To Criticize Dispensation Running The Country, Being Legislature, Executive Or Judiciary: Calcutta HC [Read Order]

Akshita Saxena

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