Ghaziabad FIR: Karnataka High Court Again Defers Order In Twitter India Head's Challenge To UP Police Notice; Fixes For July 22

Justice G. Narendar said "I will dictate the order on Thursday (July 22)." Earlier, on July 13, the pronouncement was deferred to July 20, i.e., today to enable the Judge to peruse the judgements on the issue of Jurisdiction in the meantime.

On June 24, the Court had restrained the Uttar Pradesh police from taking coercive action against Manish Maheshwari, pursuant to the notice issued to him under Section 41A CrPC in the Ghaziabad FIR.

The interim order passed by the High Court came to be challenged by the Police before the Supreme Court. However, the matter is yet to be taken up for hearing. The Twitter employee was asked by the UP Police to appear before Loni Border Police Station in relation to the investigation on the Ghaziabad video issue. The notice under section 41A was issued following a notice issued to him on June 17, under section 160 of CrPC, calling upon him to appear before police to record statement as a witness in the case.

Submissions of Petitioner

Senior Advocate C V Nagesh appearing for the petitioner submitted that "Section 41A notice is a fallout to the Section 160 Crpc notice which lacks sanction of law. The contents of notice of section 41A would indicate that it is an act of intimidation/threat."

He added there is a proverbial saying "If Mohammed can't go to the mountain, mountain has to come to Mohammed." Thus, a police officer has to come to Bengaluru to investigate the matter under section 160 CrPC as Maheshwari is a resident of Bengaluru.

Further he submitted that "There are three classifications under section 41A and unless and until I fit into any one of them there is no jurisdiction to issue the notice to me. This is a vindictive action taken and my fundamental right is affected."

Nagesh also contended that "I (Manish) am always willing to cooperate with the investigation. I will go to him (police) or will be available through Video Conference. It has been almost 10 days since the interim order but they have not done anything. They have not moved their little finger at all." Moreover, all the information they need is easily available before the Registrar of Companies.

He added "Twitter is not controlled or administered by me (petitioner). Company's name is Twitter Communications India Pvt Ltd. Who am I? An employee." Nagesh also contended that since the petitioner is resident of Bengaluru and his office also is in Bengaluru, the Karnataka High Court has jurisdiction to decide on the petition filed by him which challenged the infringement of his fundamental right. Moreover, the social media giant's Indian counterpart does not come under Section 79 (Intermediaries) of the IT Act and the petitioner has no control over the uploading of the content on the platform.

Prosecution opposed the plea

Advocate Prasanna Kumar appearing for the Uttar Pradesh police said "Offence has taken place in Uttar Pradesh. Uploading of video has resulted in violence, that is the offence. According to us, the petitioner has been claiming himself to be Managing Director of Twitter India. He cannot play hide and seek, let him come before us and answer. They have a responsibility to the people."

He added, "We (police) have given notice as he is the Managing Director, and the representative of MD let him come before us and answer."

In its written submission it was contended that the place of residence of the petitioner or the place where the petitioner carried on business may be a ground to institute a civil suit within the meaning of section 20 (a) of CPC. However, the place of residence or place where the petitioner carries on business have been excluded and does not find place in the Constitution of India. Thus Article 226 (2) is comparable only with section 20(c) of CPC which deals with the cause of action wholly or in part.

Prasanna also contended that "All the three grounds that they claim that this court has territorial jurisdiction to hear and decide the matter are not available to them as the offence has been committed in Uttar Pradesh."

Background

The FIR was registered over the tweets made by few journalists and politicians about the incident of an elderly Muslim man getting assaulted near Ghaziabad. It was alleged in the FIR that fake news was shared on Twitter that the attack was communal in nature.

The FIR was in the backdrop of an elderly Muslim man's claim in a video that his beard was cut off, and he was forced to chant "Vande Mataram" and "Jai Shri Ram". However, later on, the Uttar Pradesh Police ruled out any "communal angle" and said that Sufi Abdul Samad, the elderly man, was attacked by six men, as they were unhappy over the tabeez (amulets) he had sold them. It mentions offences punishable under Sections 153 (provoking to cause riots), 153A (promoting enmity between religious groups), 295A (insulting religious beliefs), 505 (statements inducing public mischief) & 120B (punishment of criminal conspiracy) of the Indian Penal Code.

Earlier, the High Court had allowed Mohammed Zubair, co-founder of fact-checking portal 'AltNews', to withdraw his transit anticipatory bail application after he appeared before the police and recorded his statement. Journalist Rana Ayyub, another accused named in the FIR, was granted 4-week transit anticipatory bail by the Bombay High Court on June 21.

However, Advocate Prasanna Kumar appearing for the Uttar Pradesh police submitted that maintainability of the writ petition raising the issue of lack of territorial jurisdiction. Mere service of notice at a place will not confer jurisdiction there for the purposes of Article 226(2) of the Constitution, he argued.

Further it was argued that 41A notice was issued to the Petitioner only in a representative capacity and their aim is to merely identify Twitter India head, for which they seek the Petitioner's cooperation. The court was also addressed on the issue of territorial jurisdiction, inasmuch as the alleged incident is said to have taken place in Uttar Pradesh, thus the petitioner will have to approach the court in the state of Uttar Pradesh.