'Tool Of Harassment' : Karnataka High Court Quashes UP Police Notice To Twitter India MD In Ghaziabad FIR

Calling the notice issued by the Uttar Pradesh Police to the Managing Director of Twitter India as a "tool of harassment", the Karnataka High Court on Friday quashed the said notice, issued under Section 41A of the Code of Criminal Procedure in relation to the FIR registered over the videos posted in Twitter showing the assault of a Muslim man in Ghaziabad.

The High Court said that the UP Police issued the coercive notice without ascertaining if Manish Maheshwari, the MD of Twitter Communications India Private Ltd (TCIPL), had any control over the contents posted in Twitter.

"The provisions of the statute cannot be permitted to become tools of harassment. The respondent has not placed even an iota of material which would prima facie show involvement of the petitioner. In that view of the matter petitioner has made out a case. Section 41A notice is issued by malafide and the petition is maintainable. The Annexure A1 notice is quashed", the order passed by Justice G Narender said.

The bench said that the Section 41A Notice- which contains a threat of arrest- must be read as a notice under Section 160 CrPC, which is issued for seeking statements from a witness. The Police is at liberty to seek the statement of Mahehswari as a witness through virtual mode, the bench clarified.

"The invocation of Section 41A was resorted to as an arm-twisting method after Maheshwari did not respond to initial notice under Section 160 CrPC", the High Court made a harsh observation against the UP Police.

The HC observed that the records indicated that Twitter Communications India Private Ltd (TCIPL) was involved in market research and advertising, with no control over social media content. Twitter INC, the USA company which manages the microblogging platform, holds no share in TCIPL.

"Material placed on record demonstrates that the entity Twitter India is an independent entity and share holding patter and control of the affairs of the company is in hands of Twitter Ireland...The information available cannot be said to be indicating that petitioner controlling the contents of the social media platforms run by Twitter Inc", the High Court noted.

The Court also noted that Maheshwari has not be arraigned as an accused in the Ghaziabad FIR.

In this backdrop, the High Court concluded that the Section 41A notice was "mala fide", "arm twisting method" and "tool of harassment".

The Court also rejected the objection raised by UP Police against the maintainability of the petition alleging lack of territorial jurisdiction.

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.

The Court noted that he is not named as an accused person either in the complaint or the FIR. It also noted that the Police was conscious that it is Twitter who can or who could have controlled the impugned video/ tweets on the platform.

"What emerges is that petitioner is not arrayed as an accused. Nor is it the case of respondent that there is credible information received by them in regards to his involvement or that respondent entertain a suspicion based on reasonable grounds that he committed an offence. In the absence of these three conditions the respondent could not have invoked section 41A at all. If the law mandated that act be performed in particular manner or if law mandated that a right gets vested only in a particular circumstance, it is needless to say that act can be performed only in that manner. In the absence of pre-conditions being met the authority necessarily was divested of power to invoke the statutory power."

 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. 

Senior Advocate C V Nagesh appearing for the petitioner had argued that Section 41A notice is a fallout to the Section 160 CrPC notice which lacks sanction of law. He stated that since Maheshwari is not a resident of UP, a police officer has to come to Bengaluru to investigate the matter under section 160 CrPC. He further claimed that Maheshwari has never been or is not member of the Board of Directors of the company and thus, Twitter is not controlled or administered by him.

It was further his claim that Twitter Inc is an independent organization and it is totally different, while Twitter India is a different entity.

Advocate Prasanna Kumar appearing for the Uttar Pradesh police had raised the issue maintainability citing 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 had argued.

He also made it clear 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.

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.

It was also stated before the Court that despite clarification issued by Ghaziabad police, neither doctored video nor tweets were deleted by Twitter authorities, thus resulting into further tension.

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 mentioned 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.

Click here to read/download the judgment