SC stays summon to Delhi resident over objectionable post against WB govt

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New Delhi, Oct 29 ( (PTI) The Supreme Court has granted an interim stay on summons issued to a Delhi resident, accused of allegedly making an 'objectionable' Facebook post against the West Bengal Government, by an investigating officer in the state.

A bench of Justices D Y Chandrachud and Indira Banerjee said the court should restrain the exercise of judicial review in the matter of police investigation. However, it 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 CrPC is not used to intimidate, threaten and harass, the bench said.

Section 41A of CrPC deals with notice of appearance before a police officer.

“We are, however, of the considered view that to require the petitioner 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 in the facts as they have emerged in this case. “Hence we grant an ad-interim stay against the implementation of the direction of the high court requiring the petitioner to appear before the Investigating Officer at Ballygunge Police Station,” the bench said. This is subject to the condition that the petitioner 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 apex court said.

Senior advocate Mahesh Jethmalani, appearing on behalf of the petitioner, stated that the petitioner would cooperate in all respects though after the order of 5 June 2020, no query was addressed to the petitioner, despite five months having elapsed since then. Senior advocate R Basant, appearing for the state government, submitted that liberty may be granted to the Investigating Officer, if so required, to come to Delhi for the purpose of eliciting specific responses by way of clarification from the petitioner in regard to the alleged Facebook posts. The apex court noted that there is no objection by the counsel for the petitioner to the Investigating Officer doing so with twenty-four hours' notice and acceded to the request of counsel for West Bengal government.

“The direction contained in the impugned order of the High Court requiring the petitioner to attend at the Ballygunge Police Station shall accordingly remain stayed pending further orders,' the bench said.

It also directed the High Court to dispose of the petition for quashing of FIR uninfluenced by the pendency of these proceedings and nothing contain in the present order shall amount to an expression of opinion on the merits of the rival contentions in the pending petition.

The apex court was hearing an appeal filed by Delhi resident Roshni Biswas challenging a Calcutta High Court order directing her to appear before the investigation officer at Ballygunge Police Station in connection with the case.

Summons were issued to the petitioner under Section 41A of the Code of Criminal Procedure (CrPC) by the Investigating Officer at Ballygunge Police Station.

The FIR specifically refers to two posts alleging that the lockdown is not being followed at Rajabazar and during the lockdown, thousands of people have come together and raised concerns as to whether the State administration would do something about it.

The FIR contains a statement that the posts imply that the State administration was going soft on the violation of the lock down at Rajabazar as the area is predominantly inhibited by a particular community.

Secondly, the posts imply the State administration is complacent while dealing with lock down violations caused by a certain segment of the community, the FIR said relying on Facebook links.

Biswas had 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. PTI PKS SJK DV DV