Poulami Nag vs The State Of West Bengal And Ors
2023 Latest Caselaw 1982 Cal/2

                       IN THE HIGH COURT AT CALCUTTA
                         Constitutional Writ Jurisdiction
                                  Original Side


                               WPO/109/2023

                               POULAMI NAG
                                   VS
                     THE STATE OF WEST BENGAL AND ORS.


Present :-    The Hon'ble JUSTICE JAY SENGUPTA




For the Petitioner             :-     Mr. Jayanta Narayan Chatterjee, Adv.
                                      Mr. D. Banerjee, Adv.
                                      Mr. S. Naskar, Adv.
                                      Ms. J. Patra, Adv.

For the State                   :-    Mr. A. Banerjee, Sr. Adv.
                                      Ms. I. Banerjee, Adv.

Heard on                        :-    06/07/2023, 13/07/2023, 20/07/2023,
                                      10/08/2023

Judgment on                     :-   10.08.2023


Jay Sengupta, J.:-

       This is an application for quashing of a proceeding in Karaya Police

Station Part (II) Case No. 1 dated 29/07/2022 under Section 504 of the

Penal Code.

       It appears from the affidavit-of-service filed earlier that service was

effected on de facto complainant/respondent No.3. Despite service, no one

represents the respondent No.3.

Learned Counsel appearing on behalf of the petitioner submits as

follows. The petitioner creates videos of her own individual and political

views and uploads them in the Youtube channel. She started uploading a

video sometime in 2018. She also created her own Youtube channel Hotath

Jodi Uthlo Kotha. It appears that she is having 642,000 subscribers and

have been viewed 109,062,350 times. Her Youtube channel has also got

similar popularity. However, she takes due care so that none of the videos

are objectionable or unlawful. The petitioner came to know about the

impugned proceeding once the local police station called up her father and

asked him to meet them. It appears that one Md. Shahnawaz lodged a

complaint before the police station alleging that the petitioner's channel had

been showing provocative and derogatory videos and information, which

could cause disharmony and breach of peace in the society. No further

details were given except for a video link. However, once such video link is

opened, it prompts to the main Youtube video channel, but nothing else is

available even there. Since this complaint was registered as a GD entry and

according to the police authorities a prima facie case was made out only

under Section 504 of Penal Code which was non-cognizable, the same was

accordingly forwarded to the learned Chief Judicial Magistrate, Alipore,

South 24 Parganas. However, by an Order dated 29/07/2022, learned Chief

Judicial Magistrate directed the police authorities to register an F.I.R. and

investigate into the offence. A notice under Section 41A of the Code was first

given to the present petitioner on 08/10/2022. However, provision of law

was wrongly mentioned under Section 506 of Penal Code. Accordingly, a

fresh notice was given on the same date mentioning under Section 504 of

Penal Code. This is a violation of the principle laid down in Satender Kumar

Antil Versus Central Bureau of Investigation reported in 2022 (10) SCC 51.

There it was held that notice of appearance in terms of Section 41A of the

Code shall be served on the accused within two weeks from the date of the

institution of the case unless extended by the concerned SP for reasons to

be recorded. Any infraction would attract departmental proceedings and

contempt of Court. No prima facie case is made out as would be evident

from plain reading of First Information Report (FIR). As was held by the

Hon'ble Apex Court in Kapil Agarwal & Ors. Versus Sanjay Sharma & Ors.

reported in (2021) 2 SCR 145 that even in exercise of powers under Article

226 of Constitution of India, an F.I.R. can be quashed.

Learned Counsel appearing for the State relies on the case diary and

submits as follows. A prima facie case is made out against the petitioner as

would be evident from the petitioner's complaint and the statement of

witnesses. However, the investigation of the case was started because there

was a direction to that effect given by the concerned learned Chief Judicial

Magistrate.

I have heard the submission of the learned Counsel on behalf of both

the parties and have perused the writ petition, the affidavits and the case

diary.

Although, an F.I.R. is not supposed to be an encyclopedia of all facts,

it should at least give the basic minimum details required for making out a

prima facie case. Apart from a link mentioned in the complaint, which did

not lead to an objectionable video, there is hardly anything there.

Even in the statements of the complainant and the other witness,

there is hardly anything except for reference to a video link. No transcript of

any derogatory conversation or material is present there. Nor has the

investigation led to any such video which can attract the mischief of Section

504 of Penal Code.

From a plain reading of the F.I.R. and the materials contained in the

case diary, I do not find that a prima facie case is made out against the

present petitioner.

Accordingly, the impugned proceeding is quashed.

WPO No.109 of 2023 is disposed of.

Urgent certified website copies of this judgment, if applied for, be

supplied to the parties or their advocates on record expeditiously on

compliance of usual legal formalities.

(JAY SENGUPTA, J)

A Dey