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SC: CrPC Sec 41A should not be used to threaten and harass accused


Wednesday, the Supreme Crurt bench of Justices DY Chandrachud and Indira Banerjee stated that CrPC Sec 41A should not be used to “intimidate, threaten and harass”, in Roshni Biswas Vs State of West Bengal case.

“There is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass.”, in the order.

In the case, on a Facebook post regarding non compliance with the lockdown norms in Kolkata’s Raja Bazar area, an FIR was registered there against the appellant Roshni.

“The FIR specifically refers to two posts alleging that: (i) The lockdown is not being followed at Rajabazar; and (ii) During the lockdown, thousands of people have come together and raising concerns as to whether the State administration would do something about it.”

Roshni then approached the Delhi High Court for anticipatory bail, where she was given liberty to approach the Calcutta High Court. Then after she moved to “Calcutta High Court for quashing the FIR”.

She informed the High Court through her counsel that she is willing to cooperate with the investigation via email until the lockdown not lifted. Thereafter the Police issued summon to Roshni to appear post September. Then the High Court on 29 September (this year), Roshni was directed to “appear before the investigating officer”.

“The Delhi High Court which was moved initially for anticipatory bail, granted liberty to the petitioner to move an application before the Calcutta High Court…directed the petitioner to appear before the Investigating Officer, if a fresh notice is issued under Section 41A with ten days’ prior intimation.”

Aggrieved from the order, she approached the Supreme Court.

The learned senior counsel Mr Mahesh Jethmalani for the petitioner submitted that, the condition to exercise the power under Section 41A CrPc has not met.

the condition precedent for the exercise of the power under Section 41A has not been met in the present case because neither is there a reasonable complaint nor credible information or, for that matter, a reasonable suspicion that the petitioner has committed a cognizable offence.”

The learned senior counsel for the State, referring order in ‘Arnesh Kumar’ case, submitted that, the court will not interfere during the investigation. He further submitted that, there is no reason to comply with summon as lock down has been lifted in the month of September 2020.

“in view of the decision of this court in Arnesh Kumar vs State of Bihar and Another (2014) 8 SCC 273, which is based on the earlier precedents, the court would not interfere with the course of investigation. Moreover, it has been submitted that the petitioner having indicated before the learned Single Judge on 5 June 2020 that she would be willing to travel to Calcutta after the lock down is lifted in the month of September 2020, there is no reason or justification for her to oppose complying with the summons that has been issued under Section 41A.”

“This is browbeating a citizen for exercising right to free speech. One can’t be prosecuted for saying the pandemic is not dealt with properly.” Bar and Bench published.

The bench observed that underlying principles restrain court to interfere in police investigation but it is equally important to safeguard the “principles of freedom of speech and expression”.

“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 stayed the order to participate in the investigation in Kolkata and asked the petitioner to cooperate through video conferencing.

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