It is most heartening to see that the Supreme Court most recently in a latest, landmark and laudable judgment titled Roshni Biswas vs State of West Bengal in SLP (Cri) 4937/2020 delivered as recently as on October 28, 2020 has laid down in clear, categorical and convincing terms that power under Section 41A CrPC cannot be used to intimidate, threaten or harass. It has thus very rightly stayed a direction to a Delhi resident – Roshni Biswas accused of making an objectionable facebook post against West Bengal Government to appear before the Investigating Officer in West Bengal in response to a notice issued under Section 41A of the Code of Criminal Procedure. All the courts must follow what has been laid down in this leading case so explicitly, elegantly and effectively!

To start with, the ball is set rolling in para 3 of this notable judgment wherein it is observed that:
Acting on the basis of an FIR (Annexure P-1) which contains allegations of certain objectionable posts shared on a Facebook page, summons were issued to the petitioner under Section 41A of the Code of Criminal Procedure 1973 by the Investigating Officer at Ballygunge Police Station.

The FIR specifically refers to two posts alleging that:

1. The lockdown is not being followed at Rajabazar; and
2. During the lockdown, thousands of people have come together and the State administration would do something about it.

The FIR contains a statement that the posts imply that:

1. the State administration was going soft on the violation of the lock down at Rajabazar as the area is predominantly inhabited by a particular community and;
2. that the State administration is complacent while dealing with lock down violations caused by a certain segment of the community. The FIR relies on Facebook links.

To put things in perspective, it is then pointed out in para 4 that, The Delhi High Court which was moved initially for anticipatory bail, granted liberty to the petitioner to move an application before the Calcutta High Court. The Delhi High Court, by an order dated 19 May 2020 protected the petitioner until 18 June 2020. The petitioner then moved the Calcutta High Court for quashing the FIR. On 5 June 2020, a learned Single Judge directed that no coercive steps would be taken by the State against the petitioner during the pendency of the investigation.

The petitioner stated through her counsel that she is willing to answer any questions of the investigating officer by email and even indicated that she would be willing to proceed to Calcutta if the lockdown is lifted in the first week of September 2020.

The proceedings before the High Court for quashing the FIR are pending consideration. By the impugned order dated 29 September 2020, the learned Single Judge has directed the petitioner to appear before the Investigating Officer, if a fresh notice is issued under Section 41A with ten days prior intimation.

While on the one hand, it is first mentioned in para 5 that:
Mr Mahesh Jethmalani, learned senior counsel appearing on behalf of the petitioner submits that the petitioner has stated on oath that she disclaims any association with the Facebook post and that she does not operate the web page which forms the subject matter of the FIR. That apart, it has been submitted that the petitioner is willing to cooperate with the Investigating Officer to establish that she has no connection with the post whatsoever. However, it has been submitted that the condition precedent for the exercise of the power met in the present case because neither is there a reasonable complaint nor credible information or, for that matter, a reasonable suspicion that the petitioner has committed a cognizable offence.

While on the other hand, it is then mentioned in para 6 that:
Opposing these submissions, Mr R Basant, learned senior counsel appearing on behalf of the State has submitted that in view of the decision of this court in Arnesh Kumar vs State of Bihar and another (2014) 8 SCC 273, which is based on the earlier precedents, the court would not interfere with the course of investigation. Moreover, it has been submitted that the petitioner having indicated before the learned Single Judge on 5 June 2020 that she would be willing to travel to Calcutta after the lock down is lifted in the month of September 2020, there is no reason or justification for her to oppose complying with the summons that has been issued under Section 41A.

While considering the appeal, the Bench then observed in para 7 that:
There can be no gainsaying the fact that the court in the exercise of judicial review does not interfere with the conduct of investigation under and in accordance with the provisions of the Code of Criminal Procedure 1973. The issue, however, is whether in the facts which we have narrated above, it would constitute a reasonable exercise of power within the meaning of Section 41A for the Investigating Officer to compel the petitioner to attend to the Ballygunge Police Station, in the face of a post suggesting that the lock down restrictions have not been appropriately implemented by the State of West Bengal in a particular area.

Cognizant as the Court is of the underlying principles which restrain the exercise of judicial review in the matter of police investigation, equally, the court must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. There is a need to ensure that the power under Section 41A is not used to intimidate, threaten and harass.

Be it noted, it is then pointed out in para 8 that:
We should not, at this stage, be construed to have expressed a view on the merits of the petition for quashing which is pending before the Calcutta High Court under Section 482 of the Code of Criminal Procedure 1973. The mere filing of a petition to quash an FIR under Section 482 is not sufficient in and of itself to obviate compliance with a summons under Section 41A. We are, however, of the considered view that to require the petitioner at this stage to comply with the summons under Section 41A during the pendency of the proceedings before the High Court would not be justified in the facts as they have emerged in this case.

Hence we grant an ad-interim stay against the implementation of the direction of the High Court requiring the petitioner to appear before the Investigating Officer at Ballygunge Police Station. This is subject to the condition that the petitioner undertakes to respond to any queries that may be addressed to her by the Investigating Officer and, if so required, attend to those queries on the video conferencing platform with sufficient notice of twenty-four hours.

Mr Jethmalani, learned senior counsel appearing on behalf of the petitioner states that the petitioner would cooperate in all respects though after the order of 5 June 2020, no query was addressed to the petitioner, despite five months having elapsed since then. Mr R Basant, learned senior counsel submits that liberty may be granted to the Investigating Officer, if so required, to come to Delhi for the purpose of eliciting specific responses by way of clarification to the alleged Facebook posts. Mr Jethmalani states that there is no objection to the Investigating Officer doing so with twenty-four hours notice. We accede to the request of Mr Basant.

Going ahead, it is then stated in para 9 that:
The respondents shall file their counter affidavits within a period of four weeks from today.

As it turned out, the Bench then goes on to observe in para 10 that:
The direction contained in the impugned order of the High Court requiring the petitioner to attend at the Ballygunge Police Station shall accordingly remain stayed pending further orders. The High Court may dispose of the petition under Section 482 uninfluenced by the pendency of these proceedings and nothing contain in the present order shall amount to an expression of opinion on the merits of the rival contentions in the pending petition under Section 482. Finally, it is then held in the last para 11 that, List after four weeks.

To conclude, the sum and substance of this notable judgment is that power under Section 41 of the Code of Criminal Procedure cannot be used to intimidate, threaten or harass. We thus see that in this leading case the two Judge Bench of the Apex Court comprising of Justice Dr Dhananjaya Yeshwant Chandrachud and Justice Indira Banerjee stays the police summons to Delhi resident Roshni Biswas for Facebook post against West Bengal government. The Bench also duly underscored the importance of safeguarding the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution.

We are a free country and if the invaluable right to the freedom of expression cannot be safeguarded then what is the point of calling ourselves a free country? So there can be no two views that the two Judge Bench of the Apex Court has very rightly championed the fundamental right to the freedom of speech and expression and has also very rightly advocated that the power under Section 41A of CrPC cannot be used to intimidate, threaten or harass. The police must always adhere by what the Apex Court has held so explicitly, elegantly and effectively in this leading case also without mincing any words whatsoever! There can certainly be no denying or disputing it!

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