The Supreme Court has held that the power of a police officer to summon an individual if they believe that there is credible information or against whom a reasonable complaint is made cannot be used as an intimidation, harassment or threatening tactic. This power, outlined in section 41A of the CRPC has often been coercively used by the police across the country. The order was passed by Justices Dr. D. Y. Chandrachud and Indira Banerjee on October 28, 2020 in Roshni Biswas vs State of West Bengal and Ors (SLP [Crl.] 4937 of 2020.
The court held that, the power of a police officer to summon an individual, if they believe that there is credible information for against whom a reasonable complaint is made, cannot be used as an intimidation, harassment or threatening tactic. The Division Bench granted an ad-interim stay against the implementation of the direction of the Calcutta High Court requiring the petitioner (Roshni) to appear before the Investigating Officer at Ballygunge Police Station.
Senior counsel Mahesh Jethmalani, Anunaya Mehta, Gunjan Mangla and Arunima Dwivedi (AOR) represented the Petitioner. Senior advocate R. Basant and seven others appeared for the Respondent State.
The court observed that even though judicial review should not restrain police investigation, “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.” Section 41A of the Code of Criminal Procedure provides that if a police officer requires the attendance of any person who is not to be necessarily arrested under Section 41(1) or “against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence”, the officer can issue a notice for the same. Failure to comply with the notice is a ground for arrest.
Background
Roshni Biswas, the petitioner was accused of making posts on Facebook suggesting that the West Bengal Lockdown provisions were not implemented efficiently in a certain area in the State. Thereafter, the Investigating Officer at Ballygunge Police Station issued summons to her under Section 41A of the Cr.PC. 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.
The Division Bench said that to require her at this stage to comply with the summons under Section 41A of the Cr. PC during the pendency of the proceedings before the High Court stands unjustified. The Apex Court further directed her 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 next hearing for this matter has been listed after four weeks.
The order may be read here:
Related:
https://sabrangindia.in/article/criminal-law-and-hate-speech