Justice Sabyasachi Bhattacharyya of the Calcutta High Court recently took note to highlight that people have a right to criticise the ruling government.
"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. - Calcutta High Court
In the course of judgment, the Court also added 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.
Baseless investigations are void ab initio
The Court made the observations while hearing a plea to brought by Calcutta-based journalist, Sanmay Banerjee, who was arrested on various charges including forgery, defamation and insult to breach peace, apart from allied charges under the Information Technology Act, 2000. Banerjee had filed a writ petition challenging his arrest and alleging that he had been tortured by the police following his arrest last October.
In this regard, Banerjee told the Court the Kardah police tortured him during their interrogation in order to force him into admitting that he was guilty of the offences charged. The same could be verified from the CCTV footage from the police station, the Court was told.
Banerjee’s plea for bail was initially denied and his remand extended by the concerned Magistrate. When he was finally released, Banerjee informed that he had to undergo a stint at the hospital for acute mental physical conditions.
While challenging the FIR filed against him in the High Court, the counsel for Banerjee also contended that the offences charged were either bailable or non-cognisable. Therefore, the correctness of the police investigation without notice or sanction from the Magistrate itself was questioned. The arrest itself violated the procedure outlined in Section 41A, Code of Criminal Procedure, it was argued.
Further, the complaint was lodged by the the Assistant Public Prosecutor of Raghunathpur. The petitioner pointed out that the APP was in no way connected or injured by the offences alleged in the FIR. Some of the charges in the FIR itself were questioned on grounds that they had no relation to the acts alleged to have been committed Banerjee.
The State, in turn, urged the Court to dismiss the petition, inter alia, on the ground that the investigation into the case was at a nascent stage.
Justice Bhattacharyya, however, refused to accede to the State’s submission, pointing out that an illegal, unfounded investigation would be void ab initio.
“In the event it is found on the face of it that the commencement of the investigation was beyond the jurisdiction of the police and was based on entirely fictitious and baseless allegations, there cannot arise any question of the investigation proceeding even for a moment, since the investigation was bad ab initio…
… Subsequent damage control exercises under the quoted provisions would be a mere autopsy after the damage was already done by subjecting a free citizen of India to unnecessary investigation and torture, unlawfully restraining him and putting at stake her/his personal liberty and freedom of speech and expression at the drop of a hat.”
On the case that defied logic
The Court also found reason to believe in the petitioner’s submission that he was being penalised, in furtherance of a political vendetta, for having criticised members of the ruling government.
“… the action of the police in the present case appears to be patently mala fide and reeks of political rather than legal motivation…”
Of the various factors that the Court weighed in to come to this conclusion was the fact that the complaint was lodged by someone not connected with the offences alleged against the petitioner.
“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.”
Compounding the suspicious nature of the case, the judge found that none of the ingredients of the alleged offences were satisfied to charge the petitioner with the same
“… 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.”
Equating individual members of ruling government with sovereign state would be antithesis of democracy
Notably, the Court also emphasised that individual members of the ruling government cannot be equated with state to charge people for criminal offences against the sovereignty attached to the idea of a state. The Court observed 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."
While this was the case, the Court also had this to say with reference to charge under Section 505 (1) of the Indian Penal Code (making or circulating statements 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),
“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.”
With these observations, the Judge proceeded to take the view that,
“… 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 Court, therefore, granted interim protection from coercive action to the petitioner, while also directing the police to preserve the CCTV footage from the police station. The FIR registered against Banerjee was stayed and the matter has been fixed for further hearing in January.
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