People have right to criticize ruling dispensation, be it legislature, executive or judiciary


By Sanjeev Sirohi*

It is heartening to note that the Calcutta High Court just recently on December 3, 2019 in a notable judgment titled Sanmay Banerjee Vs. State of West Bengal and others in W.P. No. 21526(W) of 2019 in exercise of Constitutional writ jurisdiction on the appellate side has very rightly held that people have every right to criticize dispensation running the country, being legislature, executive or judiciary. It held that, “It is not clear at all as to how the criticism of the State Government and its functionaries and a Member of Parliament could be deemed to be publication of a statement likely to cause fear or alarm to the public at all, let alone whereby such person may be induced to commit an offence against the State or against the public tranquility.”

Justice Sabyasachi Bhattacharyya of the Calcutta High Court who authored this judgment sets the ball rolling by observing that, “The petitioner claims to be a freelance journalist and a whistleblower, who runs two vernacular newspapers and You Tube channels. It is the contention of the petitioner that due to his exposure of corruption in political quarters, he has earned the wrath of the ruling party and has been constantly subjected to threats.

“The cause of action of the present writ petition arose when the petitioner was allegedly picked up around 7.30-7.45 p.m. on October 17, 2019 without any prior notice, by the Officer-in-Charge of the Khardah Police Station, along with hoodlums of the local ruling party, and was subjected to tremendous torture within the precincts of the Khardah Police Station and mercilessly beaten up the petitioner against all established norms of human rights.

“Ultimately, the petitioner was taken into custody by the Purulia District Cyber Crime Police Station at around 4.30 a.m. and purportedly arrested in connection with Purulia District Cyber Crime Police Station Case No. 2 of 2019 dated September 23, 2019 under Sections 465/469/500/504/505(1)(b) of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”),  read with Section 66 of the Information Technology Act, 2000 (hereinafter referred to as “the IT Act”).”

It is then pointed out that, “During interrogation, the petitioner was allegedly asked to admit that he had manipulated and manufactured documents, including some forged appointment letter issued by the West Bengal Board of Primary Education. The Inspector-in-Charge of the Khardah Police Station, it is alleged took the lead role in perpetuating torture upon the petitioner, which will easily be revealed from the CCTV footage of the Khardah Police Station of the relevant date.

“Although the petitioner was produced ultimately before the Chief Judicial Magistrate, Purulia on October 18, 2019, the bail application of the petitioner was rejected and October 20, 2019 was fixed as the date for production of the petitioner. On the latter date, the Chief Judicial Magistrate granted bail to the petitioner. According to the petitioner, he had to be admitted to a hospital under acute mental and physical condition after his release on bail and had to be treated in the hospital till November 3, 2019.”

After listening both sides, the Calcutta High Court then observes that, “The first feature of the present case, which defies logic, is that the complainant, on the basis of whose allegations the FIR-in-question was registered, was in no way connected with the alleged offences, nor the victim of any of those. The complainant was an Assistant Public Prosecutor of the State in the Raghunathpur Court.”

It is then pointed out that, “A bare perusal of the offences with which the petitioner was charged shows that all offences under the IPC were non-cognizable offences, apart from Section 469 of the IPC, which was cognizable but bailable. As such, the police could not, of its own, commence investigation on any of such allegations. That apart, a bare perusal of the sections mentioned in the FIR reveals that those do not stand a moment’s scrutiny, at least on the complaint of the Assistant Public Prosecutor, who was in no way connected with the matter.”

It is then stated that, “The first charge slapped on the petitioner was under Section 465 of the IPC, which pertains to commission of forgery. The next offence alleged, under Section 469 of the IPC, pertains to forgery being committed, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose.”

The Calcutta High Court then states, “It is evident that, by merely viewing the You Tube channels-in-question, the complainant could not have any idea about whether the document shown therein were forged or forged for the purpose of harming the reputation of anybody. The complaint lodged does not indicate any basis whatsoever for the wild apprehension of the complainants that such documents were forged.”

It is then pointed out that, “As far as Section 500 of the IPC is concerned, the same relates to defamation of another and is even compoundable by the person defamed, if she/he agreed to have the charge dropped against the accused. Section 504 of the IPC provides about intentional insult with the intent to provoke breach of the peace. Such insult has to be intentional, giving provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence.”

What is really baffling is now stated by the Calcutta High Court that, “Pertaining to both the aforesaid sections, being Sections 500 and 504, the persons against whom the defamation or the insults were allegedly committed, have not come up with any allegation whatsoever in that regard. It begs explanation as to how the Assistant Public Prosecutor of the Raghunathpur Court could have an inkling of an idea as to whether the statements were perceived to be defamatory by the recipients of such alleged defamatory statements or insults, or would cause the victims of the acts to break public peace or commit any other offence. No basis for such bald allegation has also been disclosed in the complaint.”

It is then clarified that, “Next taking into consideration Section 505(1)(b) of the IPC, which is one of the other provisions under which the investigation was apparently started by the police, the same relates to publication or circulation of any statement, rumour or report with intent to cause, or likely to cause fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.”

What seems quite incomprehensible is now stated by the Court that, “It is not clear at all as to how the criticism of the State Government and its functionaries and a Member of Parliament could be deemed to be publication of a statement likely to cause fear or alarm to the public at all, let alone whereby such person may be induced to commit an offence against the State or against the public tranquility.”

While clearing the air on “State” and “Government”, it is then observed that, “In this context, it 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. ‘State’, as commonly understood, is a body or association of people which comprises a polity and is an independent political entity having sovereignty.

“There may be different forms of governance in running the State. However, unlike the political fiction of a ‘State’, generally having geographical boundaries, a Government is a dispensation which runs the bureaucratic administration of the State at a particular point of time and cannot be identified with the State itself.”

While pointing out the most fundamental difference, it is then stated that, “Particularly in a multi-party democracy like India, it is often seen that the ideologies of political parties in control of the State machinery acquire pre-dominance over the actual will of the public, although on paper elected representatives of the people run the Government. As such, 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.”

The Calcutta High Court then minces no words to state unambiguously that, “The people always have a right to criticize the dispensation running the administration of the country, being the Government or the Executive. Even the Judiciary and the Legislature are not exempt from fair criticism. That is what the freedom of speech and expression, as enshrined in the Constitution, is all about.”

But it is also added further in the same vein that, “However, to say that transmission made in a website channel, making certain allegations against some persons, who happen to be Ministers or Members of Parliament, does not and cannot tantamount to a publication or circulation of a statement instigating people to commit an offence against the ‘State’, or against the ‘public tranquility’.

“Such allegations are of personal nature and, if aggrieved, the persons concerned could very well have approached the police authorities with legitimate complaints. In the absence of any such complaint by the said persons, it would be attributing to the said functionaries of the Government or a Member of Parliament the sovereignty associated with the concept of ‘State’, which was never contemplated by the framers of the Constitution or law-makers.”

Tt is then underscored that, “In fact, it is criticism which helps in good governance and keeps a leash on public functionaries, providing a touchstone for the Executive to test the worth of their public endeavours.”

It is held that, “In such view of the matter, the inclusion of Section 505(1)(b) of the IPC in the FIR is ex facie not maintainable… No ingredient in the acts of the petitioner, as alleged in the complaint and FIR, satisfies the criteria of Sections 500 and 504 of the IPC. As such, there is no basis to the allegations of defamation or intentional insult, as envisaged in Sections 500 and 504, in the complaint, on the basis of which the police started investigation.”

Adding further weight to the above, it is then held while pooh-poohing the ground of a valid FIR that, “Taking into account Sections 465 and 469, the question of the complainant having direct knowledge or even indirect information about any forgery being committed, merely on perusal of a video clipping on a social media, is incredible to even the most gullible among us. Such allegations are baseless, in so far as they relate to forgery of documents which the complainant did not even have the scope of going through.

“The complaint did not even disclose any basis of the complainant’s source of knowledge or reasons for apprehension, as to the documents shown on the petitioner’s social media channels being forged. Hence, all the offences under the IPC, on which investigation was started against the petitioner, were ex facie baseless and could not be the ground of a valid First Information Report.”

The Calcutta High Court while rapping the knuckles of the police held that, “It was the choice of the petitioner, for the time being at least, not to take such action against the Judicial Magistrate, which does not ipso facto absolve the police authorities from their illegal action in detaining the petitioner on frivolous grounds, that too on the complaint of a person who, on the face of it, could not have any direct knowledge of the allegations made, more so since the allegations were baseless on the face of it and were not even maintainable against the petitioner in the context of the petitioner’s actions, on the basis of which such offences were alleged.”

The Court further holds that, “Moreover, the action of the police in the present case appears to be patently mala fide and reeks of political rather than legal motivation, in view of all the persons who were alleged to be victims of the petitioner’s act in the complaint belonging to the present ruling dispensation of the state and the complaint being lodged by an Assistant Public Prosecutor of the Raghunathpur court, who ought not to be affected in any manner with, or even any basis of knowledge of, the offences alleged, particularly those of forgery, unless the complainant perceived an allegiance owned by him to his political nominators.”

In essence, this latest judgment serves to send out a very loud and clear message to one and all especially those sitting in power that people have every right to criticize dispensation running the country, being legislature, executive or judiciary!

This is what makes this judgment so special! The Calcutta High Court came to the rescue of the journalist named Sanmay Mukherjee and restrained the State authorities from taking any action against him in connection to a forgery and defamation case as there was no substance in those allegations! The contention of Sanmay that the police action was in complete violation of the law of the land as laid down by the Supreme Court in the landmark case of Arnesh Kumar v State of Bihar & Anr., (2014) 8 SCC 273, as he was not given any notice under Section 41A of CrPC which police was supposed to give! Very rightly so!

*Advocate, Meerut, Uttar Pradesh


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