Calcutta High Court (Appellete Side)

Suddhashil Ghosh vs State Of West Bengal & Ors on 7 October, 2024

Author: Rajarshi Bharadwaj

Bench: Rajarshi Bharadwaj

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      07.10.2024
                                      WPA 23820 of 2024

                                       Suddhashil Ghosh
                                              Vs.
                                  State of West Bengal & Ors.

                                            With
                                      WPA 24043 of 2024

                                       Suddhashil Ghosh
                                              Vs.
                                  State of West Bengal & Ors.



                   Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
                   Mr. Sabyasachi Chatterjee
                   Mr. Pintu Karar
                   Mr. Sayan Banerjee
                   Mr. Badrul Karim
                   Mr. Krison Sk.
                                                     ... ... for the petitioner
                   Mr. Amitesh Banerjee, SSC
                   Mr. Dipanjan Datta
                   Mr. Sayan Datta
                                      ...for the State in WPA 23820 of 2024
                   Mr. Amitesh Banerjee, SSC
                   Mr. Wasim Ahmed
                   Mr. Harun Al-Rashid
                                      ...for the State in WPA 24043 of 2024




                   1.     The present order arises out of two connected writ

                   petitions, being WPA 23820 of 2024 and WPA 24043 of

                   2024, both filed by the petitioner, Mr. Suddhashil Ghosh,

                   a journalist by profession and the proprietor of a

                   YouTube channel named 'Priya Bandhu Media'. Both the

                   writ   petitions   address   grievances   involving   false

                   allegations against the petitioner, police harassment and

                   actions aimed at restricting the petitioner's journalistic

                   freedom and registering false First Information Reports
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(FIRs). Given the interconnected facts and issues in both

matters, this Court proceeds to dispose of both writ

petitions through this common order.

2.    In   WPA   23820    of       2024,   the   petitioner    on

15th September 2024, was at his residence when, at

around 10:30 AM, a large contingent of police officers

arrived at his doorstep. The officers demanded that the

petitioner open the door, claiming they had a search

warrant issued by the Learned Additional Chief Judicial

Magistrate   (ACJM),   Kalna,      Purba   Bardhaman.         This

search warrant was in connection with GR Case No. 2372

of 2024, which arose out of Kalna Police Station Case No.

1084 of 2024, dated 11th September 2024, registered

under Sections 352/353(2) of the Bharatiya Nagarik

Suraksha Sanhita (BNSS), 2023.

3.    The petitioner asserts that the search warrant was

issued without following the due legal process and norms

as mandated by the Bharatiya Nagarik Suraksha Sanhita

(BNSS), 2023. The order was passed on 14th September

2024 by the Learned ACJM, Kalna. The petitioner

contends that the procedural safeguards enshrined in the

law were not adhered to while issuing the warrant,

making the raid legally questionable.

4.    When the police arrived, they forcibly broke the

lock of the petitioner's door before he could respond. Left

with no other choice, the petitioner opened the door, after

which the police personnel entered the premises and
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conducted a thorough search. The raid continued until

late in the night. During the search, several valuable

items were seized, including laptops and mobile phones.

It is noteworthy that some of the confiscated items, such

as laptops and mobile phones, belonged not only to the

petitioner but also to his wife and their 8-year-old son.

Despite the seizure, no copy of the seizure list was

provided to the petitioner, as required by law.

5.    Learned Counsel for the petitioner further states

that during the search, the police pressured his wife into

signing the seizure list, which was prepared by the police

authorities. The entire operation was carried out in the

presence   of   multiple   police   officers,   as   well   as

videographers who recorded parts of the raid. However,

the petitioner claims that key moments, particularly

when his wife was coerced into signing the list, were

deliberately left unrecorded by the videographers.


6.    The police also seized the CCTV cameras covering

the inside of the petitioner's home. The petitioner

expresses concern that the footage could be misused, as

the device contained personal recordings of his wife,

raising serious privacy issues. The petitioner apprehends

that the footage might be tampered with or used

inappropriately, which could cause further harm to his

family.
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7.    The petitioner submits that the actions against him

stem from a defamation allegation, which, according to

settled principles of law, cannot be registered at a police

station. Defamation is a civil issue, and the complainant

should have filed a case before a competent court of law,

not a police station. The petitioner maintains that he has

not made any defamatory statement against anyone

residing within the jurisdiction of Kalna Police Station

and is, therefore, unsure why such accusations have

been made. It has been further submitted that the

petitioner is associated with Priya Bandhu Media, which

operates a freelance reporting channel on YouTube. The

FIR registered against him is allegedly for his work as a

freelance journalist.


8.    The petitioner submits that on 25th September

2024, the I.C. of Narendrapur Police Station further

visited his doorstep and conveyed a notice under Section

35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS),

2023 in connection with GR Case No. 2372 of 2024,

arising out of Kalna Police Station Case No. 1084 of 2024,

dated 11th September 2024, under Sections 352/353(2)

of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023,

with additional charges under Section 15 of the POCSO

Act, 2012, read with Section 67B of the Information

Technology Act, 2000. The petitioner was directed to

appear before the concerned police authority within two

days from the receipt of the notice.
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9.    The petitioner contends that the additional charges

and sections cited do not fall under the purview of the

written complaint. The petitioner challenges the entire

proceeding and questions the locus standi of the

complainant to file this case against him, as the same is

barred under Section 215 of the Bharatiya Nagarik

Suraksha Sanhita (BNSS), 2023. Despite this, the

petitioner alleges that the police authority is harassing

him with an ulterior motive, without considering the

factual aspects.


10.   In WPA 24043 of 2024, the petitioner was further

implicated in two separate police cases being the Cyber

Crime Police Station, Diamond Harbour PS Case No. 26

of 2024 dated 12th September 2024, under Section 196 of

the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

read with Section 67 of the Information Technology Act,

2000, and another case registered as Kakdwip Police

Station Case No. 218 of 2024 dated 11th September 2024

under Sections 352/353(2) and 61(2) of the Bharatiya

Nagarik Suraksha Sanhita (BNSS), 2023. The petitioner

asserts that the nature of the offenses was not disclosed,

and the same came to his attention only when a notice

under Section 35(3) of the Bharatiya Nagarik Suraksha

Sanhita (BNSS), 2023 was served upon him on 18th

September 2024.


11.   The   petitioner   further   submits   that   multiple

complaints have been lodged against him, likely based on
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the same cause of action, which cannot be legally

sustained. Despite being aware of the factual matrix and

the duplicity of the complaints, the police authorities,

with deliberate intent, neglected these issues and have

treated all the FIRs as valid only to harass the petitioner.

The petitioner asserts that this conduct is indicative of

mala fide intent on the part of the police.


12.      In both writ petitions, the petitioner prays for the

quashing of the FIRs on the grounds that the allegations

therein are baseless, mala fide, and constitute an abuse

of process, therefore, violating his constitutional rights

under Articles 19(1)(a) and 21 of the Constitution of

India.


13.      Mr. Banerjee, Learned Senior Standing Counsel

appearing in WPA 23820 of 2024 and WPA 24043 of 2024

for the State respectfully submits that the complaint was

not lodged by the person against whom the alleged

defamatory comments were made, lacks legal merit.

Under Section 173 of the Bharatiya Nagarik Suraksha

Sanhita (BNSS), 2023, any individual, irrespective of their

relationship to the offense, has the right to report a

cognizable offense to the police, whether orally or through

electronic communication. The provision mandates that

upon receiving such information, the officer in charge is

required to document it accurately, read it back to the

informant, and ensure it is signed by the informant.

Consequently, any individual may lawfully serve as an
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informant, and the police are obligated to evaluate

whether the complaint falls under a cognizable offense.

Therefore, the procedures in the present case have been

duly adhered to in compliance with the statutory

provisions of the Bharatiya Nagarik Suraksha Sanhita

(BNSS), 2023 as stated hereunder:


"173. (1) Every information relating to the commission of

a cognizable offence, irrespective of the area where the

offence is committed may be given orally or by electronic

communication and if given to an officer in charge of a

police station, --


(i) orally, it shall be reduced to writing by him or under his

direction, and be read over to the informant; and every

such information, whether given in writing or reduced to

writing as aforesaid, shall be signed by the person giving

it...."


14.     It is further submitted that the search and seizure

conducted at the petitioner's residence were executed in

accordance with legal protocol. The seizure of all

electronic devices was imperative for the investigation to

trace the IP address from which the objectionable content

was uploaded onto the petitioner's YouTube channel,

'Priya Bandhu Media.' The actions taken were necessary

to substantiate the charges against the petitioner.


15.     Following the seizure, all electronic devices were

transferred to the Forensic Department of the Criminal
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Investigation Department (CID) for a comprehensive

forensic examination. The forensic team was tasked with

generating an image report of the seized devices to gather

evidence, including the origin of the uploaded content.

Post-analysis, additional charge being Section 15 under

the Protection of Children from Sexual Offences (POCSO)

Act was added to the FIR based on the findings. The

State, therefore, submits that the actions taken were in

strict    compliance   with    procedural    norms,      and   the

petitioner's objections are without merit


16.      Heard the Learned Counsels for the parties at

length.


17.      On perusal of the documents brought before this

Court and considering the submission made on behalf of

the parties, this Court reviewed the FIRs filed against the

petitioner, Mr. Suddhashil Ghosh, and found that they

were based on speculative and tenuous grounds. The

Court observes that the State respondents have failed to

provide any credible or substantive basis for the

allegations, which appeared to be aimed at suppressing

the petitioner's journalistic freedom. As such, the FIRs

are deemed an abuse of the legal process. In granting

interim relief, this Court underscored that actions by the

State motivated by mala fide intent to stifle free speech

and press freedom cannot be upheld. This Court

emphasized that the allegations were not supported by

any credible evidence and were intended to harass the

petitioner and obstruct his journalistic activities.

18. As held by the Hon'ble High Court of Calcutta in

Sanmay Banerjee v. State of West Bengal and others

reported in 2019 SCC Online Cal 3941 that:

"11. Learned senior counsel for the petitioner cites a

judgment reported at (2017) 11 SCC 731 [Common Cause

v. Union of India], which, in turn, relied on State of

Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. In the

said judgments, the circumstances and principles

regarding quashing of FIRs were discussed. Based on the

said judgments, learned senior counsel submits that

where the allegations made in the FIR or the complaint,

even if taken at their face value and accepted in their

entirety, do not prima facie constitute any offence or make

out a case against the accused, the FIR can be quashed.

12. The same principle applied to allegations in the FIR

and other materials accompanying the FIR if those did not

disclose a cognizable offence, justifying an investigation by

police officers under Section 156(1) of the CrPC, except

under an order of a Magistrate within the purview of

Section 155(2) of the CrPC.

13. Where the uncontroverted allegations made in the FIR

or complaint, and the evidence collected in support of the

same, do not disclose the commission of any offence and

make out a case against the accused or where the

allegations in the FIR constitute only a non-cognizable

offence, no investigation is permitted by a police officer

without an order of a Magistrate as contemplated under

Section 155(2) of the CrPC.

14. The same principles for quashing of FIR also applies to

situations where the allegations made in the FIR were so

absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there

is sufficient ground for proceeding against the accused.

Where a criminal proceeding is manifestly attended with

mala fides and/or where the proceeding is maliciously

instituted with an ulterior motive for wreaking vengeance

on the accused and with a view to spite him due to private

and personal grudge, the FIR ought to be quashed."

19. It has been held by the Hon'ble Justice Amrita

Sinha in Suddhashil Ghosh v. State of West Bengal in

W.P.A 2076 of 2024 that:

"13. The dignity and majesty of the judiciary is such that it

cannot be tarnished by any stray comment or some petty

act of an individual person....

...14. The Court is not at all convinced that there is any

likelihood to cause fear or alarm to the public or to any

section of the public to commit an offence against the State

or against the public tranquillity by the act of the

petitioner. The right to free speech ought not to be curtailed

by putting threat on individuals to initiate criminal

proceeding.

17. If the police are permitted to take steps in response to

such complaints, then innumerable complaints may be

filed at various police stations throughout the State and

the country and it will be practically impossible for the

police to handle such issue.