Power Under Section 41A CrPC cannot be used by the Police to Intimidate, Threaten or Harass: SC

Power Under Section 41A CrPC cannot be used by the Police to Intimidate, Threaten or Harass: Supreme Court

The Apex Court has stayed an order of the Calcutta High Court that direct Roshni Biswas accused of uploading an ‘objectionable content’ on the Facebook post against West Bengal Government, to appear before the Investigating Officer in West Bengal.

Facts of the case

  • A Delhi resident, Roshni Biswas, was accused of uploading a Facebook post.
  • It was stated in the post that the lockdown restrictions have not been appropriately implemented by the State of West Bengal in a Raja Bazzar area and that the police was contented in taking action in the area to protect a “Particular Community”.
  • Investigating Officer at Ballygunge Police Station thereafter issued summons to her under Section 41A of CrPC.
  • 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 of CrPC with ten days’ prior intimation.

Observation made by the Court

  • 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.
  • There can be no gainsaying the fact that the court in the exercise of judicial review does not interfere with the conduct of an 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 lockdown 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.
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  • The Court held 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 noted that the High Court may dispose of the petition before it uninfluenced by the pendency of these proceedings.

Case name: ROSHNI BISWAS vs. STATE OF WEST BENGAL

Case No.: SLP(Crl) 4937/2020

Coram: Justices DY Chandrachud and Indira Banerjee

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