Shreya Singhal v. Union of India WP FINAL | Crimes | Crime & Justice

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.

OF 2012

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF: Shreya Singhal Versus Union of India …. Respondents ……Petitioner

PAPER BOOK

(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONER: RANJEETA ROHATGI

INDEX SR.NO. 1. 2. 3. 4. PARTICULARS Check List Synopsis and list of dates Writ Petition with Affidavit ANNEXURE –P/1: Copies of news reports in relation to the aforesaid cases of invocation of Section 66A PAGES A1 – A2 B-

RECORD OF PROCEEDINGS

S.NO.

DATE OF RECORD OF PROCEEDINGS

PAGES

SYNOPSIS The instant writ petition is being filed under Article 32 of the Constitution of India by way of a Public Interest Litigation (“PIL”) seeking to impugn Section 66A of the Information Technology Act, 2000 (“IT ACT”) as being violative of Article 14,19 and 21 of the Constitution of India and so also to seek directions under Article 142 of the Constitution on the application of Sections 41, 156(1) and 196A of the Code of Criminal Procedure (Cr.P.C) so as to reconcile the aforesaid three provisions with Article 19 (1) (a) of the Constitution. The Petitioner herein like crores of other citizens of this Country is a user of the internet and of social networking sites such as Facebook and Twitter. Recent events involving action taken by various authorities under the aforesaid Section 66A of the IT Act have left a chilling effect on the Petitioner and crores of other internet users. It is in this conspectus that the petitioner herein approaches this Hon’ble Court under its extra ordinary jurisdiction under Article 32 of the Constitution of India. SECTION 66 A The said Section 66A deals with punishment for sending offensive messages through communication service, etc and reads as follows:. “Any person who sends, by means of a computer resource or a communication device,-

(a)

any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.” (emphasis supplied) It is humbly submitted that the phraseology of the aforesaid Section is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse. It is pertinent to note that all the terms underlined by the Petitioner for emphasis, have not been defined either under the IT Act, 2000 or under the General Clauses Act or under any other legislation to the best of the petitioner’s knowledge. This Hon’ble Court has long held in A.K. Roy v. Union of India, (1982) 1 SCC 271, that: “the impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used by the legislature.” In that case, this Hon’ble Court while dealing with the National Security Act went on to hold as follows:

“The particular clause in sub-section (2) of Section 3 of the National Security Act is, therefore, capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity is essential to the community. We consider the particular clause not only vague and uncertain but, in the context of the Explanation, capable of being extended cavalierly to supplies, the maintenance of which is not essential to the community. To allow the personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21.” (Emphasis supplied)

It is humbly submitted that in view of the wide and vague phraseology of Section 66A of the IT Act, the aforesaid dicta of this Hon’ble Court is squarely attracted, for this provision is indeed capable of wanton abuse in view of the subjective discretion of the police and the susceptibility of it being invoked cavalierly. In fact, the following recent events fortify the apprehensions of the Petitioner herein:a. In April 2012, a professor of chemistry from Jadavpur

Univeristy in West Bengal, one Sri Ambikesh Mahapatra, was arrested for posting a cartoon concerning a political figure from the State of West Bengal on social networking sites.
b. In May 2012, two Air India employees, V Jaganatharao and

Mayank Sharma were arrested by the Mumbai Police under inter alia Sec. 66 of the IT Act for putting up content on

Facebook and Orkut which was against a trade union leader and some politicians. They were in custody for 12 days.
c. In October 2012, one businessman Ravi Srinivasan was

arrested by the Puducherry Police for having made a allegation on a social networking site twitter against a politician from Tamil Nadu.
d. Most recently, Ms Shaheen Dadha, a 21-year-old girl was

arrested a few days ago for questioning the shutdown in Mumbai after the demise of a political figure on the social networking website facebook, which was 'liked' and shared by her friend one Ms Renu, who was also arrested by the Thane police in Maharashtra. Hence, it is humbly submitted that the chilling effect caused by the rather wide legislative language of the said Section 66A is already a reality and not a far-fetched apprehension. It is humbly submitted that such a chilling effect is most certainly violative of the sacrosanct freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution. Furthermore, whether or not the said section 66A meets the test of Article 19 (2), in view of the arbitrariness flowing from its vague language, the aforesaid provision it is submitted is nonetheless violative of Article 14 and Article 21 of the Constitution based on the afore-cited dicta in AK Roy (supra). SECTION 41 AND 156 (1) CR.P.C. Section 41 of the Cr.P.C. empowers the police to arrest any person without an order from the Magistrate and without a warrant in the

event that the offence involved is what is classified as “a cognizable offence” under the first schedule to the Code. Similarly, Section 156 (1) empowers the investigation by the police into a cognizable offence without an order of a Magistrate. Thus, the code of criminal Procedure allows the setting into motion of criminal law even to the extent of an arrest in the cases of cognizable offences without any judicial sanction. It is humbly submitted that the Petitioner wishes to bring to the notice of this Hon’ble Court the practice of abusing the aforesaid provisions of the Cr.P.C. by the police authorities inasmuch as offences under 66A are clubbed with one or the other cognizable offence under the Indian Penal Code such as Section 505 IPC so as to allow the police to arrest a person primarily being booked for an offence under Section 66A of the IT Act.

This Hon’ble Court has long recognized in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 that setting into motion criminal law even for non cognizable offences is a serious matter and cannot be done as a matter of course when a magistrate acts under Section 156 (3) and 157 of the Cr.P.C as follows;- .

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the

complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” (emphasis supplied) It is humbly submitted that if such is the high bar to set the criminal law into motion, then offences involving the freedom of speech and expression and its curtailment most certainly deserve the same high bar whether or not it is a cognizable offence. More recently, this Hon’ble Court recognized this facet of the interplay of constitutional freedom and criminal jurisprudence in the case of S. Khushboo v. Kanniammal, (2010) 5 SCC 600 as follows:

“In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the “freedom of speech and expression” is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can

proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused.” (Emphasis supplied) Thus, this Hon’ble Court suggested that a Section 202 of Cr.P.C. inquiry is a must as a prerequisite before issuance of process in cases involving the freedom of speech and expression. It is interesting to that there is in fact a protection contained in Section 196 (1-A) of the Cr.P.C. whereby cognizance of an offence under Section 153-B and Section 505 of the IPC cannot be taken by a court without prior sanction of Central government or of the State Government or of the District Magistrate. However, this bar introduced by an amendment in 1980 though a move in the right direction is insufficient for it does not in any way blunt or qualify the powers of the police under Section 156 (1) or under Section 41 of the Cr.P.C. The Petitioner submits that unless there is judicial sanction as a prerequisite to the setting into motion the criminal law with respect to freedom of speech and expression, the law as it stands is highly susceptible to abuse and for muzzling free speech in the country.
THE “CHILLING EFFECT”

The invocation of penal provisions on tenuous grounds has a “chilling effect” on free speech, that is to say it severally disincentivizes citizens from exercising their constitutionally

protected right to free speech for fear of frivolous prosecution and

police harassment. This Hon’ble Court has held in a catena of cases that the constitutional protection of free speech is calculated to insulate the freedom from such a “chilling effect”. It is submitted that it would amount to little consolation to say that the right to free speech of a citizen will be eventually vindicated at the end of an extended legal proceeding. The very fact that the machinery of the criminal law is set in motion against citizens on frivolous grounds amounts to harassment that is inadequately mitigated by the eventual discharge or acquittal. Hence, it is submitted that the protection of the fundamental right to free speech necessitates the existence of a safety walls at the very threshold of setting the criminal law into motion. RELIEFS PRAYED FOR Hence, apart from the striking down of Section 66A of the IT act is constitutional, the petitioner herein also seeks the invocation of Article 142 by this Hon’ble Court as has been done in the cases of PUCL/ Vishaka so as to lay down a guideline that all offences irrespective of the classification under the first schedule of the Code of Criminal Procedure, if they involve freedom of speech and expression ought to be treated as non cognizable offences for the purposes of Section 41 and 156 (3) of the Code of Criminal Procedure and that even for commencing investigation in such matters a Section 202 inquiry is mandatory. LIST OF DATES

2008 An amendment to the Information Technology Act, 2000 introduced Section 66A which reads as follows: “Any person who sends, by means of a computer resource or a communication device,(a) any information that is grossly offensive or has menacing character; or b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.”

April 2012

A professor of chemistry from Jadavpur Univeristy in West Bengal, one Sri Ambikesh Mahapatra, was arrested for posting a cartoon concerning a political figure from the State of West Bengal on social networking sites.

May 2012

Two Air India employees were arrested by the Mumbai Police under inter alia Sec. 66 of the IT Act for putting up content on Facebook and Orkut which was against a trade union leader and some politicians. They were in custody for 12 days.

Oct 2012

One businessman Ravi Srinivasan was arrested by the Puducherry Police for having made a allegation on a social networking site twitter against a politician from Tamil Nadu.

Nov 2012

One Ms Shaheen Dadha, a 21-year-old girl was arrested a days ago for questioning the shutdown in Mumbai after the demise of a political figure on the social networking website Facebook, which was 'liked' and shared by her friend one Ms Renu, who was also arrested by the Thane police in Maharashtra.

26.11.2012 The present petition under Article 32 of the Constitution of India is filed.

IN THE SUPREME COURT OF INDIA WRIT JURISDICTION (Under Article 32 of the Constitution of India) Writ Petition (Civil) No. IN THE MATTER OF Ms. Shreya Singhal r/o C-109, South Extension-II New Delhi Petitioner Versus 1. Union of India Through Secretary Ministry of Home Affairs New Delhi
2. Ministry of Communications & Information Technology.

of 2012

Department of Telecommunications. 1110, Sanchar Bhawan, Ashoka Road,. New Delhi Through its Secretary
3. Ministry of Law & Justice

Through its Secretary 4th FloorA Wing Shastri Bhawan New delhi : 110001 Delhi ,India . ….Contesting Respondents WRIT PETITION U/ARTICLE 32 FOR ISSUANCE OF WRIT OF MANDAMUS FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS U/A 14, 19, 21 UNDER THE CONSTITUTION OF INDIA To, The Hon’ble Chief Justice of India and his companion judges of the Hon’ble Supreme Court of India, at New Delhi The humble petition of the petitioners above named MOST RESPECTFULLY SHEWETH:

1. That this is a Writ Petition under Article 32 of the Constitution

of India by way of a Public Interest Litigation (“PIL”) seeking to impugn Section 66A of the Information Technology Act, 2000 (“IT ACT”) as being violative of Article 14,19 and 21 of the Constitution of India and so also to seek directions under Article 142 of the Constitution on the application of Sections 41 and 156(1) of the Code of Criminal Procedure (Cr.P.C) so as to bring the aforesaid two provisions in conformity with Article 19 (1) (a) of the Constitution.
2. The Petitioner herein is studying to do law and like crores of

other citizens of this Country is a user of the internet and of social networking sites such as Facebook and Twitter.
3. Recent events involving action taken by various authorities

under the aforesaid Section 66A

of the IT Act have left a

chilling effect on the Petitioner and crores of other internet users. The said events are as follows:

(i)

In April 2012, a professor of chemistry from Jadavpur Univeristy in West

Bengal, one Sri Ambikesh Mahapatra, was arrested for posting a cartoon concerning a political figure from the State of West Bengal on social

networking sites.
(ii)

In May 2012, two Air India employees were arrested by the Mumbai Police

under inter alia Sec. 66 of the IT Act for putting up content on Facebook and Orkut which was against a trade union leader and some politicians. They were in custody for 12 days.
(iii)

In Oct 2012, one businessman Ravi Srinivasan was arrested by the

Puducherry Police for having made a allegation on a social networking site twitter against a politician from Tamil Nadu.
(iv)

In Nov 2012, one Ms Shaheen Dadha, a 21-year-old girl was arrested a days

ago for questioning the shutdown in Mumbai after the demise of a political figure on the social networking website Facebook, which was 'liked' and shared by her friend one Ms Renu, who was also arrested by the Thane police in Maharashtra.

Copies of news reports in relation to the aforesaid cases of invocation of Section 66A, as available on the web portals of such news publications, are collectively marked and annexed as Annexure – P/1 (Colly).

4. It is in this conspectus that the petitioner herein approaches this Hon’ble Court under its extra ordinary jurisdiction under Article 32 of the Constitution of India.
5. It is submitted that the respondent no.1 is Union of India

through Secretary, Ministry of Home, and respondent no.2 is Secretary, Ministry of Communications & Information

Technology and Respondent No. 3 is Secretary, Ministry of Law & Justice
6. That all the respondents fall within the definition of Article 12

of the Constitution of India and hence amenable to the Writ Jurisdiction of this Hon’ble Court. 7. The following substantial question of law of general public importance arise in the instant petition: QUESTIONS OF LAW
A. Whether the vague description of various acts constituting

an offence under Section 66A of the IT Act, without any definition or prescription of standards whatsoever being capable of wanton abuse is violative of the sacrosanct freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution and so also violative of Article 14 and 21 of the Constitution?
B. Whether the protection afforded to free speech by means

of the bar contained in Section 196 (1A) of the Cr.P.C. to taking cognizance of an offence by courts in absence of prior sanction by the Central or State Government or

District Magistrate in relation to offences u/s 153-A, 295-A or 505 (1) of the IPC is rendered otiose in the absence of any similar bar on the power of police to investigate, search, seizure and arrest under Section 156 (1) and 41 of the Cr.P.C in such cases. (vide State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728)?
C. Whether the chilling effect created by the frivolous

invocations of criminal law especially in cases involving free speech deserves to be negated by a judicial safety valve such as an order from a magistrate as a prerequisite to initiation of investigation or arrest by the police?
D. Whether this Hon’ble Court, in the absence of legislative

safeguards against the abuse of the powers under Section 41 and 156 (1) of the Cr.P.C. ought to issue guidelines under Article 142 of the Constitution so as to reconcile the freedom of speech and expression under Article 19 (1) (a) with the aforesaid provisions of the Cr.P.C. including as suggested by this Hon’ble Court in S. Khushboo v. Kanniammal, (2010) 5 SCC 600?

8. That the brief facts leading to the filing of the instant petition are set out herein below:I.

That in 2008, an amendment to the

Information

Technology Act, 2000 introduced Section 66A which read as follows:-

66A. “Any person who sends, by means of a computer resource or a communication device,(a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.” (emphasis supplied) II. It is submitted that in view of the wide and vague phraseology of Section 66A of the IT Act, it is humbly submitted that the aforesaid dicta of this Hon’ble Court is squarely attracted, for this provision is indeed capable of wanton abuse in view of the subjective discretion of the police and the susceptibility of it being invoked cavalierly. In fact, the following recent events fortify the

apprehensions of the Petitioner herein:(i)

In April 2012, a professor of chemistry from Jadavpur Univeristy in West Bengal, one Sri Ambikesh Mahapatra, was arrested for posting a cartoon concerning a political figure from the State of West Bengal on social networking sites.

(ii)

In May 2012, two Air India employees were arrested by the Mumbai Police under inter alia Sec. 66 of the IT Act for putting up content on

Facebook and Orkut which was against a trade union leader and some politicians. They were in custody for 12 days.
(iii)

In Oct 2012, one businessman Ravi Srinivasan was arrested by the Puducherry Police for having made a allegation on a social networking site twitter against a politician from Tamil Nadu.

(iv)

In Nov 2012, one Ms Shaheen Dadha, a 21-year-old girl was arrested a days ago for

questioning the shutdown in Mumbai after the demise of a political figure on the social networking website Facebook, which was 'liked' and shared by her friend one Ms Renu, who was also arrested by the Thane police in Maharashtra.
4

That it is submitted by the petitioner herein being aggrieved is assailing the constitutionality of Section 66A and other provisions of Indian Penal Code under Article 32 of the Constitution of India on the following amongst various grounds which are taken in the alternative and without prejudice to one another.

5

The Petitioner is filling the instant writ petition on the following amongst others grounds without prejudice to each other: GROUNDS

A. For that the phraseology of Section 66A of the IT Act, 2000 is

so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and hence falls foul of Article 14, 19 (1) (a) and Article 21 of the Constitution.
B. For that all terms constituting an offence under Section 66 A of

the IT Act have not been defined either under the IT Act, 2000 or under the General Clauses Act or under any other legislation and thus susceptible to abuse and consequentially violative of Article 14 and 21 of the Constitution. This Hon’ble Court has held in A.K. Roy v. Union of India, (1982) 1 SCC 271, that: “The impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used by the legislature.” In that case, this Hon’ble Court while dealing with the National Security Act went on to hold as follows: “The particular clause in sub-section (2) of Section 3 of the National Security Act is, therefore, capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity is essential to the community. We consider the particular clause not only vague and uncertain but, in the context of the Explanation, capable of being

extended cavalierly to supplies, the maintenance of which is not essential to the community. To allow the personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21.” (Emphasis supplied)

C. For that in view of the following recent events fortify the

apprehensions of the Petitioner as to the abuse of Section 66A of the IT Act:a. Application of this section in the case of one Ms Shaheen Dadha, a 21-year-old girl who was arrested a few days ago for questioning the shutdown in Mumbai after the demise of a political figure on the social networking website facebook, which was 'liked' and shared by her friend one Ms Renu, who was also arrested by the Thane police in Maharashtra. b. One businessman Ravi Srinivasan being arrested by the Puducherry Police last month for having made a allegation on a social networking site twitter against a politician from Tamil Nadu. c. A professor from Kolkata, one Sri Ambikesh Mahapatra, being arrested in April 2012 for posting cartoons against a political figure on social networking sites.
D. For that the invocation of penal provisions on tenuous grounds

has a “chilling effect” on free speech, that is to say it severally disincentivizes citizens from exercising their constitutionally

protected right to free speech for fear of frivolous prosecution and police harassment. This Hon’ble Court has held in a catena of cases that the constitutional protection of free speech is calculated to insulate the freedom from such a “chilling effect”. It is submitted that it would amount to little consolation to say that the right to free speech of a citizen will be eventually vindicated at the end of an extended legal proceeding. The very fact that the machinery of the criminal law is set in motion against citizens on frivolous grounds amounts to harassment that is inadequately mitigated by the eventual discharge or acquittal. Hence, it is submitted that the protection of the fundamental right to free speech necessitates the existence of a safety valve at the very threshold of setting the criminal law into motion.
E. For that this Hon’ble Court has long recognized in Pepsi

Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 that setting into motion criminal law even for non cognizable offences is a serious matter and cannot be done as a matter of course when a magistrate acts under Section 156 (3) and 157 of the Cr.P.C as follows;- .

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support

thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” (emphasis supplied) It is humbly submitted that if such is the high bar to set the criminal law into motion, then offences involving the freedom of speech and expression and its curtailment most certainly deserve the same high bar whether or not it is a cognizable offence.
F. For that this Hon’ble Court in S. Khushboo v. Kanniammal,

(2010) 5 SCC 600 suggested that in matters involving freedom of speech a Section 202 inquiry ought to be made mandatory as follows :

“In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the “freedom of speech and expression” is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it should not be triggered by

false and frivolous complaints, amounting to harassment and humiliation to the accused.
G. For that the protection afforded to free speech by means of

the bar contained in Section 196 (1A) of the Cr.P.C. to taking cognizance of an offence by courts in absence of prior sanction by the Central or State Government or District Magistrate in relation to offences u/s 153-A, 295-A or 505 (1) of the IPC is rendered otiose in the absence of any similar bar on the power of police to investigate, search, seizure and arrest under Section 156 (1) and 41 of the Cr.P.C in such cases. (vide State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728).
H. For that this Hon’ble Court, in the absence of legislative

safeguards against the abuse of the powers under Section 41 and 156 (1) of the Cr.P.C. ought to issue guidelines under Article 142 of the Constitution so as to reconcile the freedom of speech and expression under Article 19 (1) (a) with the aforesaid provisions of the Cr.P.C. including as suggested by this Hon’ble Court in S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
9. That no Writ Petition u/A 226 of the Constitution has been filed

in this matter to any High Court or Under Article 32 in this Hon’ble Court prior to this petition by the Petitioner herein. PRAYER

Under the circumstances this Hon’ble Court may be pleased to a) declare that Section 66A of the Information Technology Act, 2000 is violative of Article 14, 19 (1) (a) and 21 of the Constitution of India and hence unconstitutional; and b) issue guidelines under Article 142 of the Constitution of India as this Hon’ble Court may deem fit to reconcile Section 41 and 156 (1) of the Cr.P.C with Article 19 (1) (a) of the Constitution including but not limited to; i. that offences under the Indian penal Code and any other legislation creating a criminal offence if they involve the freedom of speech and

expression be treated as a non-cognizable offence for the purposes of Section 41 and Section 156 (1); ii. that the postponement of process under Section 202 of Cr.P.C. is mandatory in cases involving the freedom of speech and expression c) pass such other or further order which this Hon’ble Court deem fit and proper in the facts and circumstances of the present case. Drawn BY NINAD LAUD & SHIVPRASAD SWAMINATHAN Advocates Dated: Filed by

RANJEETA ROHATGI Advocate for the petitioners

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