Monday, 21 October 2019

FIR For Facebook post : Karnataka HC Orders enquiry Against Magistrate Who Remanded Accused In Violation Of SC Guidelines

There is yet another important aspect which
requires consideration namely, the order passed by the
learned Magistrate granting police custody. To a specific
query made by this Court during the course of hearing to
the learned advocate for petitioner, whether registration
of FIR No.91/2019 and the grant of anticipatory bail by
the learned Sessions Judge was brought to the notice of
learned Magistrate, it was asserted by Shri.Aruna Shyam,
that the same was brought to the notice of learned
Magistrate. This submission was not disputed by the
prosecution. In Arnesh Kumar’s case, Hon'ble Supreme
Court of India has issued directions to ensure that the
Police Officers do not arrest the accused unnecessarily
and Magistrates do not authorize detention casually and
mechanically. The said directions read as follows:
“11. Our endeavour in this judgment is to ensure
that police officers do not arrest the accused
unnecessarily and Magistrate do not authorize detention
casually and mechanically. In order to ensure what we
have observed above, we give the following directions:
11.1. All the State Governments to instruct its
police officers not to automatically arrest when a case
under Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest under the

parameters laid down above flowing from Section 41
CrPC;
11.2. All police officers be provided with a check
list containing specified sub-clause under section
41(1)(b)(ii);
11.3. The police officer shall forward the check list
duly filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4. The Magistrate while authorizing detention of
the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording
its satisfaction, the Magistrate will authorize detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent
of Police of the district for the reasons to be recorded in
writing;
11.6. Notice of appearance in terms of Section 41-
A CrPC be served on the accused within two weeks from
the date of institution of the case, which may be
extended by the Superintendent of Police of the district
for the reasons to be recorded in writing;
11.7. Failure to comply with the directions
aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also
be liable to be punished for contempt of court to be
instituted before the High Court having territorial
jurisdiction.
11.8. Authorising detention without recording
reasons as aforesaid by the Judicial Magistrate concerned
shall be liable for departmental action by the appropriate
High Court.”
(Emphasis Supplied)
27. It was incumbent upon the learned Magistrate
to carefully scrutinize the papers and bestow his
attention to the submissions of the learned Advocate for

the petitioner before granting police custody. A special
care was required in the instant case because petitioner
was granted anticipatory bail by the learned Sessions
Judge, who is superior to him in hierarchy. It is
unfortunate that despite binding directions by the Apex
Court in various judgments including Arnesh Kumar, the
learned Magistrate has granted police custody. By this
act of the learned Magistrate, petitioner remained in
police custody in spite of an anticipatory bail order in his
favour. This is a serious matter and requires correction.
Further, the directions contained in paragraph No.11.8 of
Arnesh Kumar require initiation of departmental enquiry.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2019
BEFORE
THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR
CRIMINAL PETITION No.4306 OF 2019

SRI. JAIKANTH S  SEKAR K Vs THE STATE OF KARNATAKA




This is yet another classic case of abuse of authority
and power.
2. Petitioner, Jaykanth S. has presented this
Criminal petition filed under Section 482 of Code of
Criminal Procedure, 1973 with a prayer to quash FIR
No.99/2019 registered in Sriramapura Police Station,
Bangalore City and all further proceedings thereon.
3. Briefly stated the facts of the case are, on
26.05.2019 one Pradeep Kumar S.P., General Secretary
of State JDS Legal Cell lodged a complaint alleging that
Jayakanth had uploaded defamatory posts about
former Prime Minister Shri.H.D.Devegowda, Chief
Minister Shri. H.D.Kumaraswamy and Shri.Nikhil
Kumaraswamy in ‘facebook’ and ‘instagram’ pages
captioned as ‘Troll Maga’. Accordingly, FIR No.91/2019

was registered on 26.05.2019 at 21.15 hours in
Srirampura Police Station.
4. Jayakanth approached the City Civil Court,
Bengaluru seeking anticipatory bail. By order dated
10th June 2019 the learned LXXXI Additional City Civil
and Sessions Judge, Bengaluru granted anticipatory bail
in Criminal Miscellaneous No.4823/2019 with a direction
to surrender before the Police within one week
therefrom.
5. It is averred that Jayakanth went to the Police
Station on 17th June 2019 along with his Advocate and a
surety. He was asked to come on the following day to
comply with the bail order. Police refused to even
acknowledge his visit to the Police Station on that day.
Petitioner went to the Police Station on next day with his
Advocate and surety. Police not only refused to accept
the surety, but on the other hand, issued a notice to the
petitioner stating that he had violated bail condition.

Petitioner again approached the learned Sessions Judge
in Crl. Misc. No.5472/2019 seeking modification of the
earlier order by filing an affidavit containing details of his
visit to the Police Station. The learned Sessions Judge
summoned the Investigating Officer to the Court. The
Investigating Officer filed a Memo on 24th June 2019
stating that though petitioner visited the Police Station
on 17th June 2019, he had not brought the surety; that
he was on special duty and instructed the petitioner to
comply with the Court order, but the petitioner did not
comply. On the following day i.e., 18th June 2019,
petitioner appeared before him and he had issued a
notice to the petitioner informing violation of bail
condition. It is also stated in the Memo that the
Investigating Officer had no intention to disrespect the
orders of the Court.
6. It is further averred in the petition that Police
again picked up petitioner from his residence in

connection with second FIR bearing No.99/2019
registered on 23rd June 2019. Feeling aggrieved,
petitioner has presented this petition.
7. Shri.Aruna Shyam, learned Advocate for
petitioner urged following grounds in support of this
petition:
• that the petitioner has not committed any offence;
• that FIRs have been registered at the behest of
ruling party workers;
• that police have acted in high-handed manner and
taken the petitioner into custody by registering
second FIR to defeat the bail order granted by the
learned Sessions Judge;
• that the petitioner is an Engineer by profession and
hails from a respectable family; and
• that police have not followed the directions
contained in Arneshkumar Vs. State of Bihar
and another1.
8. With above submissions, Shri. Aruna Shyam
prayed for quashing the FIR.
1 (2014)8 SCC 273

9. On 24th June 2019, Shri. Aruna Shyam moved
the matter along with an application seeking stay of
further proceedings. In view of the urgency pleaded by
the learned Advocate, the case was taken up on the
same day. The learned State Public Prosecutor(SPP)
appeared and submitted that petitioner was produced
before the learned Magistrate in a different case. The
petitioner had not annexed the certified copy of the FIR
and sought dispensation of production of copies of the
complaint and FIR No.99/2019. Hence, the details of the
case in which petitioner was arrested and produced
before the Magistrate were not available for perusal of
this Court. As requested by learned SPP the case was
adjourned to next day.
10. On 25th June 2019, learned Advocate for
petitioner produced the copies of the complaint and FIR
No.99/2019. It was submitted by the learned SPP that
the learned Magistrate had remanded petitioner to police

custody on the previous day in the said case. Again time
was sought to produce records and to argue the case.
Accordingly, the case was adjourned by one more day.
11. On 26th June 2019, Shri.Udaya Holla, the
learned Advocate General appeared for the State and
submitted that petitioner was arrested in Crime
No.99/2019 which was distinct from Crime No.91/2019.
However, having taken note of the gravity of situation,
he fairly submitted that pending consideration of this
petition, petitioner shall be released forthwith.
Accordingly an order was recorded and petitioner was
released.
12. During the course of final hearing on 11th July
2019, Shri. Udaya Holla urged following grounds in
support of petitioner’s detention:
• that petitioner was arrested in a separate case
namely Crime No.99/2019 which is registered for
distinct offences; and

• that petitioner has violated the bail condition
imposed by the learned Sessions Judge not to
indulge in similar activities. Amplifying this
contention, he submitted that having obtained bail
on 10th June 2019, petitioner has again posted
defamatory posts on 13th June 2019 in violation of
bail conditions. The first FIR bearing No.91/2019
was registered for offences punishable under
Sections 504, 507 and 153A of IPC, whereas the
second FIR bearing No.99/2019 has been registered
for offences punishable under Sections 153A, 295A,
504, 506, 354(D) and 298 of IPC. Thus, the second
FIR is based on different offences. With these
submissions he sought to justify petitioner’s arrest.
13. In reply Shri.Aruna Shyam contended that the
second complaint on 23rd June 2019 has been given by
one B.Raviraj of JDS, IT Cell. Both FIR No.91/2019 and

FIR No.99/2019 are with regard to posts in ‘facebook’
and ‘instagram’ pages called ‘Troll Maga’.
14. In substance, it was urged by Shri.Aruna
Shyam that second complaint has been filed to defeat the
benefit of bail granted by the learned Sessions Judge.
15. I have carefully considered rival contentions
and perused the records.
16. Complaint dated 26th May 2019 was filed by
General Secretary of State JDS Legal Cell. It is stated in
the complaint that a page called ‘Troll Maga’ containing
defamatory posts had become viral in social media.
17. Complaint dated 23rd June 2019 was filed by
the IT Cell of JDS party. It is stated in the complaint that
petitioner had opened a page called ‘Troll maga’ in
facebook. The posts in the said page had caused enmity
and conflict between political parties.

18. Learned Sessions Judge granted bail on 10th
June 2019. It was urged by Shri. Aruna Shyam that
petitioner went to the Police Station on 17th June 2019,
but he was asked to again come on the following day. It
is petitioner’s case that police deliberately did not permit
the petitioner to execute the bond. It is not in dispute
that petitioner approached the learned Session Judge
with a second petition seeking modification of the order
passed on the first petition. The investigating officer was
summoned by the learned Sessions Judge and he has
field a Memo. The contents of the Memo filed by the
Investigating Officer are relevant. The Memo is extracted
‘as it is’ and it reads as follows:
“MEMO
Herewith I humble submission to Hon’ble Court on
issue of compliance of anticipatory bail order criminal
miscellaneous No.4823/19 issued a bail on 10 of June
2019. The subject comply a bail, complainant entered
police station on 17th June at the time of comply from the
complainant at 19:30 p.m. without surety. I was on
special duty outside at J.P. Bhavan. I received message
through phone from A.S.I. Sri Somanna after that I

suggested to complaint fulfil the court orders and go, but
he went for Xerox and he did not came to police station.
This is the fact of reality in this case. It’s my
knowledge and declaration to the respected honourable
court.
Next day i.e., on 18/06/19 the petitioner
appeared before me along with Hon’ble court orders and
a representation which I acknowledged duly and issued a
notice to surrender his mobile phone which is necessary
for investigation. He insisted me to do the arrest
formality which I didn’t do as I thought was not
necessary as I was in the process of collecting more
evidence from face book legal department.
The petitioner made allegation against me are
false. I have no intension to disrespect the orders of
honourable court.
Hence I promise to honourable court and as the
same respect to court and their orders.” (Sic.)
24/6/19 Deponent
Bangalore (Sd/-)
(Ravi Patil)
19. Though the Memo is not happily worded, suffice
to note that the Investigating Officer has admitted in the

Memo that petitioner had gone to the Police Station on
17th June 2019. Admittedly, the Memo is dated 24th June
2019. The second FIR has been registered at 4.30 p.m.
on 23rd June 2019. It is significant to note that the
Investigating Officer has not brought to the notice of
learned Sessions Judge about registration of second FIR
on the previous day and suppressed a vital material fact.
20. In substance, the allegations in both complaints
are more or less identical. They pertain to posting
defamatory posts in the social media. The first complaint
is by the General Secretary of a Political party and the
second complaint is by the IT Cell of the same political
party.
21. Admittedly, the learned Sessions Judge granted
anticipatory bail in FIR No.91/2019. Though a feeble
attempt was made by the learned Advocate General to
defend the arrest, the conspectus of facts leading to
registration of second FIR, the contents of the Memo filed

by the Investigating Officer suppressing a vital material
fact about registration of second FIR on the previous day
and petitioner’s arrest during the course of investigation
of second FIR, lead to an irresistible inference that a
deliberate attempt was made by the police to ensure that
petitioner was ‘somehow’ detained.
22. Liberty of citizen in a civilized society is
sacrosanct. Nearly 70 years back Rt. Hon. Lord Justice
Denning recalled the long tradition followed by King’s
Judges to put all matters aside and to hear an application
which concerns liberty of a citizen forthwith. It is apt to
recount following sentences of his speech in London
University in November 1949:
“Let me start with an instance of how the courts
approach the subject. Whenever one of the King's
judges takes his seat, there is one application which by
long tradition has priority over all others. Counsel has
but to say 'My Lord, I have an application which
concerns the liberty of the subject' and forthwith the
judge will put all other matters aside and hear it. It may
be an application for a writ of habeas corpus, or an

application for bail, but, whatever form it takes, it is
heard first. This is of course only a matter of Freedom
under the Law procedure, but the English law respecting
the freedom of the individual has been built up from the
procedure of the courts : and this simple instance of
priority in point of time contains within it the
fundamental principle that, where there is any conflict
between the freedom of the individual and any other
rights or interests, then no matter how great or
powerful those others may be, the freedom of the
humblest citizen shall prevail over it. These are fine
sentiments which you will find expressed in the laws of
other countries too ; but rights are no good unless you
can enforce them ; and it is in their enforcement that
English law has shown its peculiar genius. The task is
one of getting the right balance. The freedom of the
individual, which is so dear to us, has to be balanced
with his duty; for, to be sure every one owes a duty to
the society of which he forms part.”
(Emphasis Supplied)
23. After quoting a passage from Police Powers and
Accountability by John M.Lambert on Royal Commission
on Criminal Procedure and the suggestions of Third
Report of National Police Commission, the Hon’ble

Supreme Court of India in Joginder Kumar Vs. State of
U.P. and others2 has held as follows:
“20. ……….No arrest can be made because it is
lawful for the police officer to do so. The existence of
the power to arrest is one thing. The justification for
the exercise of it is quite another. The police officer
must be able to justify the arrest apart from his power
to do so. Arrest and detention in police lock-up of a
person can cause incalculable harm to the reputation
and self-esteem of a person. No arrest can be made in
a routine manner on a mere allegation of commission
of an offence made against a person. It would be
prudent for a police officer in the interest of protection
of the constitutional rights of a citizen and perhaps in
his own interest that no arrest should be made without
a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of
a complaint and a reasonable belief both as to the
person's complicity and even so as to the need to
effect arrest. Denying a person of his liberty is a
serious matter. The recommendations of the Police
Commission merely reflect the constitutional
concomitants of the fundamental right to personal
liberty and freedom. A person is not liable to arrest
merely on the suspicion of complicity in an offence.
There must be some reasonable justification in the
opinion of the officer effecting the arrest that such
arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer
issues notice to person to attend the Station House
and not to leave the Station without permission would
do.”
24. Thus it is clear that FIR No.99/2019 has been
registered only to ensure that petitioner was some how
2 (1994) 4 SCC 260

arrested and detained in custody. Therefore, it is just and
appropriate to quash the said FIR.
25. This is a case of blatant violation of
fundamental right by the Police. Having come to such
conclusion, mere quashing the FIR shall not mitigate the
agony which the petitioner was compelled to undergo. In
D.K.Basu Vs. State of West Bengal3 it is held that a
Court of Law cannot close its consciousness and aliveness
to stark realities by recording thus:
“45. The old doctrine of only relegating the
aggrieved to the remedies available in civil law limits
the role of the courts too much, as the protector and
custodian of the indefeasible rights of the citizens.
The courts have the obligation to satisfy the social
aspirations of the citizens because the courts and the
law are for the people and expected to respond to
their aspirations. A court of law cannot close its
consciousness and aliveness to stark realities. Mere
punishment of the offender cannot give much solace
to the family of the victim — civil action for damages
is a long drawn and a cumbersome judicial process.
Monetary compensation for redressal by the court
finding the infringement of the indefeasible right to
life of the citizen is, therefore, useful and at time
perhaps the only effective remedy to apply balm to
the wounds of the family members of the deceased
victim, who may have been the breadwinner of the
family.”
3 (1997)1 SCC 416

26. There is yet another important aspect which
requires consideration namely, the order passed by the
learned Magistrate granting police custody. To a specific
query made by this Court during the course of hearing to
the learned advocate for petitioner, whether registration
of FIR No.91/2019 and the grant of anticipatory bail by
the learned Sessions Judge was brought to the notice of
learned Magistrate, it was asserted by Shri.Aruna Shyam,
that the same was brought to the notice of learned
Magistrate. This submission was not disputed by the
prosecution. In Arnesh Kumar’s case, Hon'ble Supreme
Court of India has issued directions to ensure that the
Police Officers do not arrest the accused unnecessarily
and Magistrates do not authorize detention casually and
mechanically. The said directions read as follows:
“11. Our endeavour in this judgment is to ensure
that police officers do not arrest the accused
unnecessarily and Magistrate do not authorize detention
casually and mechanically. In order to ensure what we
have observed above, we give the following directions:
11.1. All the State Governments to instruct its
police officers not to automatically arrest when a case
under Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest under the

parameters laid down above flowing from Section 41
CrPC;
11.2. All police officers be provided with a check
list containing specified sub-clause under section
41(1)(b)(ii);
11.3. The police officer shall forward the check list
duly filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4. The Magistrate while authorizing detention of
the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording
its satisfaction, the Magistrate will authorize detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent
of Police of the district for the reasons to be recorded in
writing;
11.6. Notice of appearance in terms of Section 41-
A CrPC be served on the accused within two weeks from
the date of institution of the case, which may be
extended by the Superintendent of Police of the district
for the reasons to be recorded in writing;
11.7. Failure to comply with the directions
aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also
be liable to be punished for contempt of court to be
instituted before the High Court having territorial
jurisdiction.
11.8. Authorising detention without recording
reasons as aforesaid by the Judicial Magistrate concerned
shall be liable for departmental action by the appropriate
High Court.”
(Emphasis Supplied)
27. It was incumbent upon the learned Magistrate
to carefully scrutinize the papers and bestow his
attention to the submissions of the learned Advocate for

the petitioner before granting police custody. A special
care was required in the instant case because petitioner
was granted anticipatory bail by the learned Sessions
Judge, who is superior to him in hierarchy. It is
unfortunate that despite binding directions by the Apex
Court in various judgments including Arnesh Kumar, the
learned Magistrate has granted police custody. By this
act of the learned Magistrate, petitioner remained in
police custody in spite of an anticipatory bail order in his
favour. This is a serious matter and requires correction.
Further, the directions contained in paragraph No.11.8 of
Arnesh Kumar require initiation of departmental enquiry.
28. In the light of the above discussion, the
following:
Order
(a) Petition is allowed.
(b) FIR No.99/2019 registered in Srirampura
Police Station and all further proceedings
thereon are quashed.

(c) State shall pay cost of Rs.1,00,000/- (Rupees
One Lakh) to the petitioner within one month
from today.
(d) The Director General & IG shall initiate
departmental enquiry into the matter and
submit the report to the Registrar General
within three months from today.
(e) State shall recover the cost from the salary of
officers found guilty in the Departmental
Enquiry.
(f) State shall file separate compliance reports of
directions in paragraphs (c) and (e) of the
order.
(g) The Registrar General shall place compliance
report of direction in paragraphs (c) and (e)
before the Court.
(h) The Registrar General shall take necessary
action for initiation of Departmental Enquiry
against the Magistrate as per directions in


para 11.8 of Arneshkumar Vs. State of Bihar
and another (supra).
29. Before parting with the case, this Court places
its appreciation on record the valuable assistance and the
statesmanly stand taken by Shri. Udaya Holla, the
learned Advocate General during the hearing on
26th June 2019 offering to release the petitioner
forthwith.
30. In view of disposal of this petition,
I.A. No.4/2019 does not survive for consideration and the
same is disposed of.
Sd/-
JUDGE

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