The People have right to fairly criticize the administration of the country, which even cannot be taken away by Legislature, Executive or even Judiciary: CALCUTTA HC

Harshit Sharma | Amity Law School, Madhya Pradesh | 26th December 2019

Sanmay Banerjee V/s. State of West Bengal & Ors. WP No. 21526/ 2019

FACTS OF THE CASE

1. The present petitioner claims to be a freelancer journalist and a whistle-blower who is running 2 vernacular newspapers under his name and YouTube channels.
2. Due to his actions which exposed the corruptions taking place in the administrative department or specifically saying the government sector has earned him wrath of the ruling party of that State, which ultimately brought the cause of action to present the writ petition before the Hon’ble High Court of Calcutta.
3. The Petitioner/Journalist 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.
4. 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 r/W. Section 66 of the Information Technology Act, 2000.
5. 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 perpetrating torture upon the petitioner, which will easily be revealed from the CCTV footage of the Khardah Police Station of the relevant date.

Thus, the present WP was filed for seeking grievance from the arbitrary action of the State officials.

ISSUES RAISED

1. Whether the procedure established by law was followed while taking cognizance and thereafter investigating the matter?
2. Whether the proceedings initiated against the petitioner is patent violation of his Right to Freedom of Speech and Expression?
3. Whether to what extent Right of Free Speech be exercised and whether he present case is well within its ambit at the instance of petitioner?
4. Whether the present case is politically motivated and a clear instance of arbitrary use of power?

RULING OF THE COURT/ THE COURT HELD THAT

Giving interim relief to the petitioner while staying the proceedings in this case till the disposal of the Writ Petition, no coercive action be taken against the Petitioner and CCTV be produced of the Police station, on the next enlisted date for hearing in the month of January, and observed the following points and opined the following ratios:

1. “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.”
2. “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 tranquillity,” with regard to the charge of Section-505(1)(b) of IPC, 1860.
3. “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. 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.”
4. 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 APP has no locus standi.

As clarified, these are
the tentative observations standing on the touchstone of when this Writ Petition
will attain finality with its final observations, because the WP at present is
at the stage for Interim relief and maintainability of this petition.