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Power U/s 41A CrPC Cannot Be Used To Intimidate, Threaten Or Harass

Background Of The Case

(1) Roshni Biswas, a Delhi resident is accused of making a Facebook post suggesting that the lock down restrictions have not been appropriately implemented by the State of West Bengal in a particular area.

(2) The FIR specifically refers to two posts alleging that:

(i) The lockdown is not being followed at Rajabazar; and

(ii) During the lockdown, thousands of people have come together and raising concerns as to whether the State administration would do something about it.

(3) Investigating Officer at Ballygunge Police Station thereafter issued summons to him under Section 41A.

(4) She 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.

Contentions Before The Bench

(1) Ld. Advocate on behalf of the petitioner submitted that the condition precedent for the exercise of the power under Section 41A has not been met in the present case because neither is there a reasonable complaint nor credible information or, for that matter, a reasonable suspicion that the petitioner has committed a cognizable offence.

(2) Opposing these submissions, Mr R Basant, learned senior counsel appearing on behalf of the State has submitted that in view of the decision of this court in Arnesh Kumar vs State of Bihar and Another (2014) 8 SCC 273, which is based on the earlier precedents, the court would not interfere with the course of investigation.


(1) While considering the appeal, the Apex Court bench observed thus:

“There can be no gainsaying the fact that the court in the exercise of judicial review does not interfere with the conduct of investigation under and in accordance with the provisions of the Code of Criminal Procedure 1973. The issue, however, is whether in the facts which we have narrated above, it would constitute a reasonable exercise of power within the meaning of Section 41A for the Investigating Officer to compel the petitioner to attend to the Ballygunge Police Station, in the face of a post suggesting that the lock down restrictions have not been appropriately implemented by the State of West Bengal in a particular area. 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.”

(2) 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.”

(3) The bench said that, to require her 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.

(4) The SC, therefore, granted an ad interim stay of the High Court order, subject to the condition that she 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.

(5) The court also observed that the High Court may dispose of the petition before it uninfluenced by the pendency of these proceedings.

Case Details


[SLP(Crl) 4937/2020 ]

Coram: Justices DY Chandrachud and Indira Banerjee

Dated : 28-10-2020

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