Power U/s 41A CrPC Cannot Be Used To Intimidate, Threaten Or Harass: SC Stays Police Summons To Delhi Resident For FB Post Against West Bengal Govt. [Read Order]

The Supreme Court has stayed a direction to a Delhi resident 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.

"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.", the bench comprising Justices DY Chandrachud and Indira Banerjee said.

Roshni Biswas, a Delhi resident is accused of making a Facebook post suggesting that the lock down restrictions have not been appropriately implemented by the State of West Bengal in a particular area. Investigating Officer at Ballygunge Police Station thereafter issued summons to him under Section 41A. She moved the Calcutta High Court which directed that no coercive steps would be taken by the State against her during the pendency of the investigation. However, the court directed her to appear before the Investigating Officer, if a fresh notice is issued under Section 41A with ten days' prior intimation.

While considering the appeal, the Apex Court bench observed thus:

"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."

The bench said that, to require her 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. The court, therefore, granted an ad interim stay of the High Court order, subject to the condition that she 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.

The court also observed that the High Court may dispose of the petition before it uninfluenced by the pendency of these proceedings. The case is posted after four weeks.

Case: ROSHNI BISWAS vs. STATE OF WEST BENGAL  [SLP(Crl) 4937/2020 ]

Coram: Justices DY Chandrachud and Indira Banerjee 

Counsel: Sr. Adv Mahesh Jethmalani, Sr. Adv. R. Basant 

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