Calcutta HC: Infinitely Risky Proposition to Equate the State with the Government in Power, since that would be very Antithesis of a Democracy

Article 19(1)(a) of the Constitution of India states that all citizens have the right to Freedom of Speech and Expression. It is one of the Fundamental Rights of every citizen in the country and the foundation of democracy. It gives us the right to express opinions and convictions freely by any mode of communication. Such communication also includes publishing one’s opinion and therefore the Freedom of Press is also a part of a strong foundation. The Judiciary must protect our Fundamental Rights and Sanmay Banerjee moved the Calcutta High Court on 22nd November 2019 against the State of West Bengal & Ors. for violating his freedom of speech and expression as well as Human Rights.

Facts of the Case

The writ petition, WP No. 21526(W) was filed on behalf of Sanmay Banerjee, a freelance journalist and a whistle-blower who runs to vernacular newspapers and YouTube Channels. The petitioner claimed that due to his exposure to corruption in political quarters, he has been subjected to repeated threats.

The primary cause of filing the petition was that the petitioner was allegedly picked up on 17th October 2019 by the Officer-in-Charge of the Khardah Police Station without any prior notice. He was tortured and beaten in the precinct and taken into custody by the Purulia Dist. Cyber Crime Police Station and arrested under the following sections of the Indian Penal Code;

1. Sec 465: punishment for forgery,
2. Sec 469: forgery for purpose of harming reputation,
3. Sec 500: punishment for defamation,
4. Sec 504: intentional insult with the intent to provoke breach of peace,
5. Sec 505(1)(b): with intent to cause, or which is likely to cause, fear or alarm to the public whereby any person may be induced to commit an offence against the State or against the public tranquillity read with Sec 66 of the Information Technology Act, 2000: punishment for sending offensive messages through communication services.

The petitioner was produced before the Chief Judicial Magistrate, Purulia on 18th October which was rejected and extended till the 20th of October. Due to intense mental and physical trauma, he had to be treated in the hospital till 3rd November 2019.

Arguments by the Petitioner’s Counsel

The learned senior counsel on behalf of the petitioner made the following arguments:

1. Sections under which the petitioner was allegedly booked were either non-cognizable (a case in which police does not have the authority to arrest without a warrant) or bailable (crimes that are not serious) or both. In such cases, the police are not authorized to start an investigation on their own without an order of the competent Magistrate.
2. Most of the charges were unrelated to acts allegedly done by the petitioner.
3. The Khardah police station did not issue a notice directing the person of the complaint within 2 weeks of the institution of the case. [Section 41A of the CrPC]
4. Failure to issue such notice makes the police officers liable for departmental action as well as contempt of court. [Arnesh Kumar vs. State of Bihar and another (2014)]
5. First Information Report (FIR) was registered based on a complaint by the Asst Public Prosecutor of the Raghunathpur Court who was in no way related to the allegations. The people against whom the offences were allegedly committed never came forward. He has no standing to complain at all.
6. Certain charges like inciting the public against the State were put in because of criticism against the Chief Minister and other ministers who also never directly complained.
7. The Acts of the police was in blatant violence of the petitioner’s human rights.
8. FIR should be squashed under the following terms [State of Haryana and others vs. Bhajan Lal and others (1992)];
9. 1. the allegations in the FIR do not constitute a case against the accused,
   2. allegations made in the FIR were absurd,
   3. if the process of investigation shows an ulterior motive for wreaking vengeance.
10. The petitioner fell victim to a personal vendetta due to his opinionated views against the functionaries of the State Government.
11. Lastly, the freedom of speech and expression of the petitioner was grossly violated and necessary action should be taken against the alleged perpetrators.

Learned Counsel on behalf of the Respondents

The learned Counsel for the Respondents furthered the following arguments;

1. The investigation is still at a nascent stage and would be premature to stop the police.
2. There are safeguards available to the petitioner under CrPC;

1. 1. Sec 173(3)- permitting further investigation.
   2. Sec 216- the court can alter charges
   3. Sec 221-measures if there is doubt of the offence committed
   4. Sec 222- reduction of charges
2. The petitioner was produced before the Judicial Magistrate and therefore his detention was not unlawful. The order passed by the Magistrate was not challenged.
3. The guidelines of the case Arnesh Kumar vs. the State of Bihar and another (2014) was not concerning the detention, therefore, does not apply to the present case.
4. The notice required to be issued under Sec 41A of CrPC was repeatedly sought to be served but the petitioner eluded their attempts of the authorities.

The judgement of the Court

The Court analysed the case in detail and brought forth the following points to life:

1. the complainant, referenced earlier, based on whose allegations the FIR-in-question was registered was in no way connected to the alleged offences “defies logic” in the eyes of the Court. The sections do “not stand a moment’s scrutiny” from the complainant.
2. All offences with which the petitioner has been charged are non-cognizable or bailable or both which means that the police were not supposed to commence investigation on its own.
3. Regarding Sec 465 and 469 of IPC, the Court states that the complainant could not have concluded that the documents shown in the petitioner’s YouTube Channels were forgeries. The allegations are baseless as the complainant did not have the scope of going through.
4. Concerning Sec 500 and 504 of IPC, the people against whom the alleged offences were committed have not come forward with any complaints. The Court cannot understand how the Assistant Public Prosecutor of the State could have known the statements were perceived to be defamatory by the recipients. There is no basis to the allegations of defamation.
5.  Considering the Sec 505(1)(b), the Court was uncertain how the criticism of the State Government and its functionaries and a Member of Parliament could be “deemed to be the publication of a statement likely to cause fear or alarm to the public at all”. Regarding criticism of members of parliament and ministers, the Court is of the view that “criticism…keeps a leash on public functionaries”. Therefore, the charges under Sec 505(1)(b) of IPC is not maintainable.
6. While examining Sec 66 of the IT Act which revolves around Sec 43 of the same Act, the Court states that such offences are in nature of “unauthorized access”. The said section is not connected with the nature of offences since the petitioner was using his equipment and so Section 66 should not be “attracted under any stretch of the imagination”
7. The respondent’s counsel suggests that the Judicial Magistrate granted permission for detention beyond 24 hours which means the police followed the due procedure of law. The Court, however, points out the writ petition is not only about technical violations but the assault on democratic rights of the petitioner as well. The extension of the period of detention cannot retrospectively validate an erroneous act of the police in starting the investigation in the first place and register the FIR at all.

The Court states that all the offences under the IPC were baseless, the acts of the police violated the freedom of speech and expression of the petitioner, the commencement of the investigation by the police on its own was wrong, to begin with, and explicitly highlights that, has to be noted that there is a common misconception of identifying the ‘State’ with the ‘Government’. This may be a fallout of the failure of the Indian polity to implement the Constitutional vision as to separation of powers between the three wings of the Government, in particular among the Legislature and the Executive…it would be an infinitely risky proposition to equate the State with the government in power, since that would be the very antithesis of a democracy.”

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