Section 41A CrPC cannot be used by police to intimidate or harass: Supreme Court stays Calcutta HC order in Raja Bazar Facebook post case

The Supreme Court has observed that even though there needs to be restraint in exercise of judicial review in matters of police investigation, it is equally important for courts to safeguard the principles of freedom of speech and expression under Article 19(1)(a) of the Constitution (Roshni Biswas v. State of West Bengal & Ors)..In this light, the police's power to issue summons under Section 41A of the Code of Criminal Procedure (CrPC) cannot be used to intimidate, threaten and harass, the Court has noted..The Bench of Justices DY Chandrachud and Indira Banerjee made these observations in a case where a 29-year-old woman, Roshni Biswas, was pulled up by the Kolkata Police for posting objectionable content on Facebook. .An FIR was registered against Biswas for posting on Facebook that lockdown norms were being violated in Kolkata's Raja Bazaar area and that the police was complacent in taking action in the area to safeguard "a particular community.".With a view to quashing the proceedings against her, Biswas had initially approached the Delhi High Court, which suggested that she approach the Calcutta High Court. In June, the Calcutta High Court granted her interim protection from arrest while the quashing proceedings are pending..Biswas had informed the High Court that she would cooperate with the investigation and that she was willing to travel to Kolkata in September, provided the lockdown is lifted. Thereafter, the Kolkata Police issued summons to Biswas to appear in Kolkata post September. .On September 29, the High Court directed her to appear before the investigating officer in the case..She then approached the Supreme Court challenged the summons issued to her as well as the September 29 order of the High Court. .Representing Biswas before the Apex Court, Senior Advocate Mahesh Jethmalani argued that there was no material to conduct a probe against her and that quashing proceedings should be decided first. Further, it was submitted that Biswas had disclaimed any association with the Facebook post and that she does not operate the web page which forms the subject matter of the FIR.However, Senior Advocate R Basant, appearing for State of West Bengal, contended that she would only be questioned and not arrested. Moreover, since she had agreed to travel to Kolkata previously, there was no reason for her to oppose complying with the summons issued under Section 41A..After hearing the parties, the Court noted in its order,."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."Supreme Court.The Court stated the primary question before it was whether an accused can be compelled to be questioned at a police station via summons issued under Section 41A for a complaint suggesting that lockdown norms were not properly followed in an area..Critiquing the police for issuing summons in the case, Justice Chandrachud observed during the hearing that it was akin to browbeating a citizen. He went on to note,"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.”.While staying the direction of the High Court asking Biswas to present herself at the Ballygunge Police Station, the Apex Court stated that she would be available to cooperate with the police via videoconferencing. Further, Kolkata Police officials can visit Delhi to question her after giving a 24-hour notice period. .The matter is listed after four weeks..[Read order]