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

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 nominators," it said.

On de-constructing each of the charges leveled against Banerjee, the court found out that the essential ingredients of those offences were not satisfied in the present case. It said,

"By merely viewing the YouTube channels‐in‐question, the complainant could not have any idea about whether the document shown therein were forged or forged for the purpose of harming the reputation of anybody. The complaint lodged does not indicate any basis whatsoever for the wild apprehension of the complainant that such documents were forged."

Specifically, with regards the charge under Section 505(1)(b) of IPC, the court said,

"It is not clear at all as to how the criticism of the State Government and its functionaries and a Member of Parliament could be deemed to be publication of a statement likely to cause fear or alarm to the public at all, let alone whereby such person may be induced to commit an offence against the State or against the public tranquility."

The said provision relates to publication or circulation of any statement, rumor or report with intent to cause, or likely to cause fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.

Recognizing the right of fair criticism and fair comment, the bench remarked,

"The people always have a right to criticize the dispensation running the administration of the country, being the Government or the Executive. Even the Judiciary and the Legislature are not exempt from fair criticism. That is what the freedom of speech and expression, as enshrined in the Constitution, is all about.

In fact, it is criticism which helps in good governance and keeps a leash on public functionaries, providing a touchstone for the Executive to test the worth of their public endeavours."

However, the court clarified that its findings were tentative as far as the final disposal of the writ petition was concerned and were only made for the purpose of deciding on the ad interim prayer.

Thus, it directed the state authorities to restrain from acting upon and/or taking any coercive measure against the Petitioner on the basis of the impugned FIR. It also asked the Respondents to preserve and secure the entire CCTV footage of the Khardah Police Station, where the Petitioner was allegedly tortured, for production, if necessary, before the court.

Case Details:

Case Title: Sanmay Banerjee v. State of West Bengal & Ors.

Case No.: WP No. 21526/ 2019

Quorum: Justice Sabyasachi Bhattacharyya

Appearance: Advocates Bikash Ranjan Bhattacharya, Kallol Basu, Samim Ahmed, Sabyasachi Chatterjee, Sourav Mondal, Pintu Karar, Akashdeep Mukherjee, Saloni Bhattacharya, R. Singh, Debolina Sarkar, and Koustav Bagchi (for the Petitioner); Advocates Sirsanya Bandhopadhyay and Arka Kumar Nag (for the State)

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