Case Summary and Outcome

The Calcutta High Court ordered the police to return the petitioner’s mobile phone and SIM card which they had seized while interrogating him over several social media posts he had allegedly made about the lack of personal protective equipment (PPEs) supplied by the Government to doctors in public hospitals treating COVID-19 infected patients. The police had registered a complaint against the petitioner for allegedly inciting enmity between persons and disturbing public harmony contrary to Section 153A of the Penal Code. The Court held that prima-facie, the ingredients of Section 153A were not made out and further directed the police not to interrogate the petitioner again without the permission of a competent court. It observed that as per the protection of freedom of expression granted by Article 19 of the Constitution, the Government cannot intimidate a person by subjecting him to lengthy police interrogations or seizures merely because that person expressed an opinion that brought disrepute to the Government.

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources

Facts

The petitioner, Dr. Indranil Khan, was a medical practitioner engaged in private practice. On March 28, 2020, the petitioner made Facebook posts about the alleged deficient personal protective equipment (PPEs)  supplied by the Government to doctors in public hospitals who were attending to COVID-19 affected patients.

In light of the posts, on March 29, 2020, the West Bengal police registered a complaint (referred as a First Information Report or ‘FIR’) against the Petitioner under Section 153A of the Indian Penal Code, 1860. Section 153A deals with promoting enmity between different groups on grounds of religion, race etc. to disturb public tranquillity and harmony. The petitioner was then called to the police station where he was subjected to lengthy interrogation, and his mobile phone and SIM card were seized.

The petitioner then approached the Calcutta High Court for relief as he was aggrieved by the lengthy interrogation and seizures. He argued that the posts reflected legitimate problems faced by the doctors.

Decision Overview

Justice I.P. Mukherjee of the Calcutta High Court delivered the order as a Single Bench order of the High Court operating through video conferencing.

Due to the urgency of the matter, the Court entertained the petitioner’s plea as an unlisted motion. It did not frame formal issues and proceeded with hearing the matter after coming to agreement with the petitioner that all procedural formalities regarding filing and stamping would be complied with in due course.

The primary issue before the Court was whether the police were correct in filing the criminal complaint under Section 153A of the Penal Code and also for seizing the mobile phone and SIM card that Dr. Indranil had used to make the posts.

The Court gave immediate relief to Dr. Indranil. It ordered the police to immediately return the mobile phone and SIM card to the doctor and further directed that the doctor should not be interrogated further without the permission of a competent court. The Court held that prima facie, the ingredients of Section 153A were not made out in the present case. There was no evidence that Dr. Indranil had spread “facts maliciously,” such as to sow fear or panic, “with a view to causing damage to another person or to the public at large or the nation.” [p. 3] It observed that as per the protection to freedom of expression granted by Article 19 of the Constitution, the Government cannot intimidate a person by subjecting them to lengthy police interrogations or seizures merely because that person expressed an opinion that brought disrepute to the Government.