While giving its verdict on a very significant legal point pertaining to the liability of being tagged in comments in social media by other person, the Single Judge Circuit Bench at Jalpaiguri of Calcutta High Court in a most learned, laudable, landmark and latest judgment titled Sri Protip Roy Basunia Vs The State of West Bengal & Anr. in C.R.R. 113 of 2021 that was heard on 8th and 11th May, 2023 and then finally pronounced on May 12, 2023 has minced just no words at all to hold unequivocally that merely being tagged in comments on the social media by any other person necessarily does not confer any liability or responsibility on the person being tagged. We thus see that the Calcutta High Court has very rightly quashed the criminal proceedings against a school teacher who was accused in a case alleging spreading of communal hatred and violence through comments made on Facebook. There was nothing on record to substantiate that the school teacher had abetted directly communal hatred in any manner and so he had to be ultimately acquitted. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Ananya Bandyopadhyay of the Circuit Bench at Jalpaiguri of Calcutta High Court sets the ball in motion by first and foremost putting forth in para 1 that:
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.

Needless to say, the Bench states in para 2 that:
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.

As we see, the Bench mentions in para 3 that:
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.

It is worth noting that the Bench points out in para 4 that:
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.

Be it noted, the Bench notes in para 11 that:
The complaint dated 06.05.2021 and the statements recorded under Section 161 Code of Criminal Procedure on record do not describe the specific act of the present petitioner to constitute the elements to justify an offence to have been committed under Sections 504/505/506/120B of Indian Penal Code.

While citing the most relevant case laws, the Bench observes in para 12 that, The Hon’ble Supreme Court in the case of Bilal Ahmed Kaloo Vs. State of A.P. (1997) 7 SCC 431: 1997 SCC (Cri) 1094 and State of A.P. Vs. Bilal Ahmed Kaloo observed as follows:

11. This Court has held in Balwant Singh v. State of Punjub that mens rea is a necessary ingredient for the offence under Section 153-A. Mens rea is an equally necessary postulate for the offence under Section 505(20 also as could be discerned from the words with intent to create or promote or which is likely to create or promote as used in that sub-section.

12. The main distinction between the two offences is that while publication of the words or representation is not necessary under the former, such publication is sine qua non under Section 505. The words whoever makes, publishes or circulates used in the setting of Section 505() cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, anyone who makes a statement falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction. But the same is the effect with Section 153-A also and then that section would have been bad for redundancy. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction.

13. Yet another support to the above interpretation can be gathered from almost similar words used in Section 499 of the Penal Code as whoever by words … makes or publishes any imputation ….

14. In Sunilakhya Chodhury v. H.M. Jadwet it has been held that the words makes or publishes any imputation should be interpreted as words supplementing each other. A maker or imputation without publication is not liable to be punished under that section. We are of the view that the same interpretation is warranted in respect of the words makes, publishes or circulates in Section 505 IPC also.

15. The common feature in both sections being promotion of feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or group without any reference to any other community or group cannot attract either of the two sections.

16. The result of the said discussion is that the appellant who has not done anything as against any religious, racial or linguistic or regional group or community cannot be held guilty of either the offence under Section 153-A or under Section 505(2) of IPC.

Most significantly and most rationally, the Bench then also minces absolutely no words to mandate specifically in para 13 stating what constitutes the cornerstone of this notable judgment that:
The petitioner seemed to have been tagged in the Facebook post in dispute allegedly uploaded by another co-accused. The documents in the case diary did not disclose any comment of the petitioner on the Facebook post to have pioneered religious hatred amongst different communities. Moreover, subsequent effect of the Facebook posts as alleged to have resulted into an overwhelming negative impact on the society at large with violent outburst is absent.

The allegations against the petitioner to have been directly involved in the commission of alleged offences are not substantially prevalent in the case record to indict him. Being tagged in the space of comments on social media at the instance of any other person necessarily does not confer any liability or responsibility on the person being tagged with or express unanimity of the comment or its essence thereof constructively. The complaint presupposes the occurrence of a riot but did not state any incident of such occurrence as an offshoot of such Facebook post.

Most forthrightly, the Bench then has no hesitation to propound in para 14 holding that:
It is of imprudence to subject any person to face trial in a criminal case based on mere assumptions and suspicious in absence of criminal intent or ulterior motive for accomplishing any wrongful act. Therefore to allow the petitioner to face trial will result into abuse of the process of law.

As a corollary, the Bench then expounds in para 15 that:
Accordingly the instant criminal revisional being No. CRR 113 of 2021 is allowed.

In addition, the Bench then also directs in para 16 that:
The proceedings being Kotwali Police Station Case No. 325 of 2021 dated 6.05.2021 corresponding to G.R. Case No. 577 of 2021 under Sections 504/505/506/120B of the Indian Penal Code pending before the Learned Chief Judicial Magistrate, Sadar, Cooch Behar is accordingly quashed.

In conclusion, the Calcutta High Court very rightly quashes the FIR against teacher. It also very rightly holds that:
Being tagged in comments on social media by any other person necessarily does not confer any liability on person being tagged. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh