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Synopsis

The Calcutta High Court has ordered the immediate release of a man arrested for allegedly making defamatory comments against a Member of the Legislative Assembly belonging to the ruling party, Trinamool Congress (TMC), during a Facebook live stream of an administrative meeting held by Chief Minister Mamata Banerjee.

Justice Amrita Sinha, presiding over the case, criticised the police's actions, describing them as "sheer high-handedness.” The court asserted that arresting the man under Sections 505(1)(b) and 500 of the Indian Penal Code constituted "prima facie over-action.”

The petition was was initiated by the wife of the detained man. The petitioner’s husband was arrested by officers from Shibpur Police Station on June 30, 2024. On the day of the arrest, a notice under Section 41(A) of the Criminal Procedure Code (CrPC) was issued, directing the man to appear at the Shibpur Police Station on July 1, 2024, at 11 A.M. However, he was arrested on June 30, 2024, allegedly for failing to accept the notice.

The counsel representing the accused, Advocate Sabyasachi Chatterjee, argued that the police arrested the man within a day of his comments, without following due process. He was summoned to the police station, immediately arrested, and jailed without explanation for offences punishable by less than two years of imprisonment.

Contrarily, the State's counsel, Advocate General Kishore Datta,  countered that the arrest occurred because the accused failed to respond to a Section 41A Code of Criminal Procedure (CrPC) notice issued by police seeking the appearance of the accused. They maintained that the arrest was justified as the accused was in judicial custody after being produced before a magistrate.

Notably, the complaint was lodged by someone not directly affected by the alleged defamation.

The Court expressed concern over the arrest for defamation when the complaint was not from the aggrieved party and noted that the arrest occurred just two days after the complaint was received. The Court criticised the police for curbing the accused's right to free speech without due process. “Only because a citizen has protested or has raised his voice to highlight the illegalities or corruption by a member of the ruling dispensation and against the member of the Legislative Assembly, the police ought to have taken such stringent steps to curtail the freedom of the said citizen. Fundamental right of a citizen of this country to move about freely ought not to be curtailed without abiding the due process of law,” the court remarked.

The Court noted discrepancies in the notice issued under Section 41A CrPC and the premature arrest of the man on the same day the notice was served. “The act of the police in fixing the date of appearance on 1st July, 2024, but arresting him on 30th June, 2024 on the date the notice under Section 41A of the CrPC was issued, appears to be over-jealous (sic) act of the police officer,” the court stated.

The court further noted that “The very purpose to arrest somebody is either to prevent commission of any cognizable offence or if the person concerned is involved in any crime. Herein, the allegation against the petitioner is primarily under Section 500 IPC. The other Section in the notice under Section 41A CrPC has been misquoted.”

The Court also directed the preservation of CCTV footage from the Shibpur Police Station on June 30, 2024, to clarify the circumstances of the arrest.

Consequently, the court ordered the immediate release of the petitioner’s husband by 5 P.M. on the day of the ruling (July 3, 2024). The matter is scheduled for a further hearing on July 10, 2024.

 

Cause Title: Sarika Khatun Vs The State of West Bengal & Ors. [WPA 17066 of 2024]