By Srajan-

Section 41A of Crpc reads as

Notice of appearance before police officer.– (1) [The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section

(1) of section 41, 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 may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

[(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.]

The issue started when Roshni Biswas who is residing in Delhi made a Facebook post commenting on the carelessness and improper execution of the lockdown restrictions in a particular region of West Bengal by the State Ministry.

After this post, the concerned police officer issued her a notice u/s 41A of Crpc. An appeal was made by her in Calcutta High Court to which thae Court ordered the state not to take any further action till the investigation is in process. The HC found the notice u/s 41A to be in good faith and directed her to appear before the investigating officer.

Unsatisfied by the Calcutta HC, Roshni went to Supreme Court where the two judge bench granted an interim stay on the HC order and find the facts of the case not in compliance with the issue of notice under the said section.

The bench comprising Justices DY Chandrachud and Indira Banerjee stated “Cognizant as the Court is of the underlying principles which restrain the exercise of judicial review in the matter of police investigation, equally, the court must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. There is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass.”