New Delhi: After journalist Prashant Kanojia was arrested for tweeting about Uttar Pradesh chief minister Adityanath on Saturday, his wife Jagisha Arora filed a writ petition in the Supreme Court on Monday.
Kanojia used to be a staff reporter with The Wire Hindi.
The matter will be argued by lawyers Nitya Ramakrishnan and Shadan Farasat before the vacation bench of the Supreme Court on Tuesday.
Arora’s petition says that the FIR against Kanojia has been filed under Sections 500 of the Indian Penal Code and 66 of the Information Technology Act, both of which are bailable offences. “In fact, it is strange that the police filed a case against Section 500 (defamation) at all, since the law requires the concerned person (in this case Adityanath) to file a complaint himself.”
The petition lays out alleged procedural lapses on the part of the police, including not presenting Kanojia before a magistrate and no arrest memo being prepared.
Two sections were later added to the charges, which were not on the original FIR – IPC Section 505 and IT Act Section 67. Arora’s petition says that “neither of these sections are even prima-facie made out”.
“The malice is evident from the manner of the arrest,” the petition continues.
Kanojia had recently posted on Twitter and Facebook a video of a woman speaking to various TV channels about wanting to marry Adityanath. She claimed in the video that she had been conversing with the chief minister for a long time over video chat, and that now she wanted to know if he was willing to spend his life with her.
In her petition, Jagisha Arora notes that Kanojia’s “alleged post on its face value constitutes no criminal offence and it is an unwarranted assault on the free speech and the right to life. This is a substantive violation of the citizen’s Fundamental Right.” She added that “posting a video clip in the public domain, which has been carried as a news item in major media outlets is no offence. Furthermore to add a comment by way of a hackneyed one liner “love cannot be hidden” is hardly defamatory or a crime warranting police action.”
Noting that “when the state, in the name of the chief minister, commits a violation of the Constitution, it is necessary that Court, charged with the protection of Fundamental Rights as a duty, issue an appropriate writ to secure the citizen’s liberty,” she has asked the court to:
- Issue a writ order or direction in the nature of habeas corpus or other appropriate writ order or direction to forthwith set the petitioner’s husband at liberty; and/or
- Issue a writ order or direction in the nature of mandamus or other appropriate writ order or direction to the UP government to initiate appropriate departmental or other action as may fit against those responsible for the blatant illegality; and/or
- Direct payment of exemplary damages to the petitioner/her husband for the breach of Fundamental Rights, and/or
- Pass such other orders as may be deemed in the facts and circumstances of the case.
Read the synopsis of the case as provided in the petition below.
This is a writ petition by the wife of 26 year old Prashant Kanojia, a Hindi journalist who was unceremoniously taken away by men in civil dress on 8.6.2019 from his Delhi residence. It transpires that on 7.06.2019 the police officials of PS Hazratganj, Lucknow had lodged an FIR against him under Sections 500 IPC and 66 Information Technology Act, 2000 both of which bailable offences. Indeed the police can have no role whatsoever to lodge any FIR in a case under Section 500 IPC, which is criminal defamation, and requires under Section 199, CrPC that the person aggrieved alone may file a complaint before a Magistrate. Section 66 of the Information Act carries a maximum sentence of 3 years which is bailable in terms of section 77 B of the Act. The police was bound to release him in Delhi itself in terms of Section 436 CrPC which mandates release on bail in bailable cases but this statutory mandate was not even considered by the police.
Possibly in order to obviate any release on bail, in an FIR carrying bailable offences only, the petitioner’s husband was not produced before any Magistrate to seek a transit remand. No arrest memo was prepared and neither the petitioner nor her husband was told of why he was being taken and who the “arresting officials” in civil dress were.
Much later, around 6 in the evening, a “press note” was released by Hazrat Ganj police claiming that the petitioner’s husband was held under Sections 500, 505 of IPC and Section 67 IT Act. Two sections, i.e. Section 505 IPC and Section 67 IPC were obviously added because the FIR contained only bailable offences. However, neither of these sections are even prima-facie made out assuming without admitting that the allegations are be correct. Section 505(1) reads as follows:
“505-Statements conducing to public mischief-
(1) Whoever makes, publishes or circulates any statement, rumour or report,—
(a) with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.”
Similarly, Section 67 of the IT Act, 2000 reads as follows:
“67 Punishment for publishing or transmitting obscene material in electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”
It is evident that sharing of a video available in public domain by a person proclaiming love for even a public official cannot even prima-facie called a rumour much less one which can disturb public tranquillity and similarly the same is not “lascivious or appeals to the prurient interest.”
Further, the relevant portion of Section 505 of the IPC as also Section 67 of the IT Act carries only a sentence of 3 years and thus in terms of section 41(b) ii d requires extraordinary reasons for arrest to be recorded in writing. This Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 has directed that such persons accused of offences carrying a maximum sentence of 7 years or less should not be arrested at all. Likewise Section 67 IT Act carrying only 3 years in the even of a first conviction, is made expressly bailable by Section 77B of the IT Act.
In any event, the malice is evident from the manner of arrest in violation of mandatory directives of this Court in D.K. Basu’s case as are now incorporated in Chapter 5 of the Code and the addition Section 505 and Section 67 IT Act.
LIST OF DATES
|Around 5 June 2019||A lady calling herself Hema Shrivastava addressed a group of persons/reporters in Lucknow claiming to be in love with the UP Chief Minister Mr. Yogi Adityanath and also claiming that she had been in regular contact with him over video conferencing in the past year. She said that she had brought a letter and wanted to meet him face to face. A video clip of this was uploaded on YouTube and some other portals by the next day and these are still accessible.|
|6 June 2019||A Tweet is alleged to have been put out by Prashant Kanojia saying “ Ishq Chupaye nahin Chupta Yogi ji” while putting out a video as aforesaid regarding a lady who claims to be in love with the Chief Minister of UP. The lady has gone public and this was merely tweeting a news item already in the public eye with a humorous remark.|
|6th & 7th June, 2019
|Reputed newspapers including Navbharat Times and Jagaran carried reports quoting the lady almost verbatim.|
|7 June 2019||FIR 290/2019 is lodged by Hazratganj PS Lucknow, alleging offences against Prakash Kanojia under S.500 IPC and 66 IT Act. Both are bailable and S.500 IPC cannot even be entertained by a court unless the person defamed complains or in certain cases a designated person on his behalf (See Section 199 CrPC)|
|8 June 2019 Between 12 noon and 1 pm||Around midday some inquiries are made against Prakash Kanojia by unidentified men from his friend Amit Visen who is a journalist with News Click. Soon thereafter unidentified men in civil dress who were in INNOVA vehicle picked up Prashant Kanojia as he went out of his house in Vinod Nagar New Delhi. They briefly let him go up to his house but prepared no arrest memo and did not inform either Prashant Kanojia or his wife who was present as to who they were and why they were taking him. He had no access to legal assistance. This is a complete violation Article 22 of the Constitution, Chapter V CrPC and the DK Basu guidelines.|
|8 June 2019 around 2 pm||A family friend Puneet managed to call the Prashant Kanojia on his cell phone, whereupon Prashant Kanojia said that they were passing Greater NOIDA, and that it was the UP Police that had taken him into custody.|
|8 June 2019 around 6 pm||PS Hazratganj issued a Press Note that Prashant Kanojia had been arrested for an inappropriate comment in the social media that was objectionable and defamed the Chief Minister of UP and that upon “stern questioning” he had confessed to the crime and was hence being prosecuted. The press Note mentioned Section 67 IT Act and Sections 500 and 505 IPC, Even Section 67 IT Act prescribes only a maximum of 3 years for a first time convict. Admittedly there is no previous conviction that Prashant Kanojia has suffered. Section 77 B of the IT Act makes offences punishable with 3 years bailable. As per the CrPC Section 500 is bailable. Section 505 IPC relates to false statement, rumour etc, which simply does arise. There is no rumour only a repetition of a news item made in public and which has not been denied. Even this is punishable with a maximum of 3 years and thus not a matter calling for an arrest.|
|8 June 2019
|Prashant Kanojia’s wife, the present petitioner, gets a call on her mobile number from another mobile number 8887574679. The speaker claimed to be SHO Hazratganj and said that Prakash Kanojia was being lodged in Lucknow Central Jail|
|8 June 2019
|Prashant Kanojia’s wife, the present petitioner, gets a call on her mobile number from another mobile number 9454403853. This time a police official got Prashant Kanojia to speak and he too said that he was in Lucknow Central Jail.|
|9th June, 2019||The Editors Guild of India condemned the arrest of the husband of the Petitioner.|
|10th June, 2019||As both substantive and procedural law has been violated the petitioner is moving this writ petition of habeas corpus for her husband.|
The full text of the petition is below: