Amit Malviya, the BJP’s IT Cell Chief, received relief from the Calcutta High Court regarding accusations of inciting communal tension. Justice Jay Sengupta, presiding as a single judge, scrutinized the procedural aspects of the police notice issued to Malviya under Section 41A of the CrPC.
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KOLKATA: Recently, The Calcutta High Court has granted relief to Amit Malviya, the IT Cell Chief of the Bharatiya Janata Party (BJP), amidst allegations of inciting communal tension.
Justice Jay Sengupta, who presided over the case as a single judge, closely examined the procedural details of the police notice issued to Malviya under Section 41A of the Criminal Procedure Code (CrPC), which requires a person to appear for interrogation. The judge identified a notable procedural error: the notice did not specify a date for appearance.
Section 41A of the Criminal Procedure Code (CrPC)–
(1) When the arrest of a person is not necessary under the provisions of subsection (1) of section 41, the police officer shall issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as specified in the notice.
(2) If such a notice is issued to any person, it is the duty of that person to comply with the terms of the notice.
(3) If the person complies and continues to comply with the notice, he shall not be arrested for the offence mentioned in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
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(4) If such person fails to comply with the terms of the notice or is unwilling to identify himself at any time, the police officer may, subject to any orders passed by a competent Court, arrest him for the offence mentioned in the notice.
Due to this error, the court directed that any future interrogation of Malviya should be conducted via video conference, provided a 48-hour notice is given in advance.
Due to this error, the court directed that any future interrogation of Malviya should be conducted via video conference, provided a 48-hour notice is given in advance.
The court’s order explicitly stated-
“It has come to light that one of the notices issued under Section 41A of the Code does not include a date. According to reports, the petitioner received these notices after appearance dates had already been established. Additionally, there are claims that the police are providing insufficient notice periods for appearances. In light of these concerns and to ensure fairness, the investigating agency will question the petitioner via video conference after giving a 48-hour prior notice by email.”
This directive not only accommodates Malviya’s request for a more flexible interrogation method, given his busy schedule with the upcoming Lok Sabha elections, but also sets a precedent for how legal notices should be meticulously drafted and served. The court further ordered that Malviya’s email address be provided to the state’s advocate, ensuring a streamlined communication channel for future notices.
Another important aspect of this case was the court’s insistence on following the Supreme Court’s instructions about making First Information Reports (FIRs) publicly available. The Calcutta High Court pointed out a violation of the Supreme Court’s ruling in the Youth Bar Association of India vs Union of India case, which says FIRs should be uploaded on state police department websites.
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The court’s order was clear:
“It seems there’s a breach of the Supreme Court’s direction in the Youth Bar Association of India case regarding uploading the FIR. The FIR should be uploaded immediately on the police’s official website.”
Advocates Sourav Chatterjee, Brajesh Jha, Satadru Lahiri, Vikash Singh, S Azam, Kanchan Jaju, and Megha Dutta appearing for Malviya, while the state’s interests were defended by advocates Amal Kumar Sen, Suman Sengupta, and Jaladhi Das.
