Extending relief to journalist Prashant Kanojia from Uttar Pradesh, the Supreme Court has asked the local police to immediately release the scribe, arrested on Friday for allegedly making objectionable comments against Chief Minister Yogi Adityanath on social media. At the hearing on Tuesday of the petition filed against his arrest, the bench asked the state administration a number of pertinent questions.
"Is this a case of murder? ... Opinions of individuals may vary. He (Prashant) probably should not have published or written that tweet, but on what basis was he arrested?" the court asked, adding that Kanojia cannot be kept in custody for 11 days for merely posting something on social media.
Kanojia had tweeted a video of a woman who had professed her love for Adityanath
The court also pointed out that to prosecute someone under the law on criminal defamation, there should be a complaint filed by an individual. In this case, the police said they had acted of their own accord because Kanojia's tweet was "inflammatory" in nature.
The FIR, lodged "suo moto" by the Uttar Pradesh Police, is registered under Section 500 of the Indian Penal Code and Section 66 of the Information Technology Act. It alleges that Kanojia had made defamatory comments against Adityanath.
Livelaw also pointed out that an arrest for defamation under Section 500 of the IPC can only be made after a "private complaint" is made to a magistrate. In itself, such an act remains a non-cognisable offence, which means no person can be arrested without a warrant under the defamation law.
"The liberty of citizens is sacrosanct and non-negotiable. It is guaranteed by the Constitution and it cannot be infringed," noted the vacation bench of Justice Indira Banerjee and Justice Ajay Rastogi, while hearing the petition filed by lawyers Nitya Ramakrishnan and Shadan Farasat on behalf of Kanojia's wife Jagisha Arora.
Arora had filed a habeas corpus petition against the "illegal" and "unconstitutional" arrest of her husband and sought a direction to the Uttar Pradesh Police to release him without any delay.
In the petition, Kanojia's wife also sought departmental action against the policemen, who were not in uniform, for arresting the vernacular scribe from Delhi for allegedly committing "bailable offences". She also sought "exemplary damages" for Kanojia for his "illegal arrest".
"The Hindi journalist was unceremoniously taken away by men in civil dress on 8 June from his Delhi residence. It transpires that on 7 June, police officials of Hazaratganj Police Station in Lucknow had lodged an FIR against him under sections 500 (criminal defamation) of the IPC and 66 of the Information Technology Act, and both offences are bailable," the plea said.
Under the Code of Criminal Procedure, the police were obliged to release Kanojia in Delhi itself as the offences alleged were bailable, the petition said, adding that the accused should have been granted bail on his arrest by the police itself.
"No arrest memo was prepared and neither the petitioner nor her husband was told as to why he was being taken and why the 'arresting officials' were in civil dress," it said.
Two provisions — Section 505 (statements conducing to public mischief) of the IPC and Section 67 (punishment for publishing or transmitting obscene material in electronic form) of the IT Act — were added to the FIR later as the earlier report contained only bailable offences, the plea said. These penal provisions prescribe maximum sentences of two and three years in jail, respectively.
Kanojia's posts on Twitter and Facebook included a video of a woman speaking to reporters of various media organisations outside the chief minister's office, claiming she had sent Adityanath a marriage proposal.
A sub-inspector at the Hazratganj Police Station in Lucknow had registered an FIR against Kanojia on Friday night, alleging that the accused made "objectionable comments against the chief minister and tried to malign his image".
With inputs from PTI
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Updated Date: Jun 11, 2019 14:44:14 IST