Calcutta High Court (Appellete Side)
Facebook. Inc vs The State Of West Bengal & Anr on 3 January, 2018
Author: Siddhartha Chattopadhyay
Bench: Siddhartha Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
C.R.R. No. 2332 of 2017
Facebook. Inc
Vs.
The State of West Bengal & Anr.
Present : The Hon'ble Justice Siddhartha Chattopadhyay
For the Petitioner : Mr. Siddharth Luthra, Sr. Adv.,
Mr. Souvik Mitter,
Mr. Nitin Saluza,
Ms. Saansh Purohit,
Mr. Manu Krishnan,
Ms. Richa Srivastava,
Ms. Suhani Dwivedi,
Ms. Arunima Dey.
For the Union of India : Mr. Kaushik Chanda, Ld. A.S.G,
Mr. Rahul Sarkar.
For the State : Mr. Kishore Dutta, Ld. A.G.,
Mr. Saswata Gopal Mukherjee, Ld. P.P.,
Mr. Bibhas Chatterjee, Ld. Spl. P.P.,
Mr. Ayan Basu,
Mr. Goutam Banerjee.
Heard On : 20.12.2017.
Judgment Delivered On : 03.01.2018.
Siddhartha Chattopadhyay, J.:
Being dissatisfied with the order dated 18.06.2017, passed by the learned Chief Metropolitan Magistrate, Calcutta, the present petitioner has prayed for quashing of the said order. By the said impugned order, the learned C.M.M. has directed the present petitioner to remove the entire Facebook pages available at "The Darjeeling Chronicle". Pursuant to that order of the learned C.M.M., the local police has sent a notice under Section 91 Cr.P.C. on 19.06.2007 and asked the petitioner to immediately block and remove the relevant pages.
2. The petitioner herein has challenged the said order as well as the action of the local police on following grounds:-
(1) That the C.M.M. has passed the impugned order just mechanically and without any application of mind.
(2) The said order was beyond the jurisdiction of the said Court in view of Rule 10 of Information Technology Rules 2009. (3) That the learned C.M.M. has acted without adhering to the relevant Sections 177 to 184 Cr.P.C. which deals with the jurisdiction of a criminal court, (4) That the learned trial court ought to have considered Sections 95 and 96 Cr.P.C., since it is a special statue.
(5) Relevant rules i.e. IT (Procedures and Safeguards for blocking for access to information by public) rules were not complied with.
3. At the time of hearing, learned Counsel Mr. Luthra appearing on behalf of the petitioner contended that no F.I.R. was registered and in spite of that learned trial court has passed an order to that effect. The impugned order bears the words "G.D. Extract No. 582, dated 17.06.2017."
4. On perusal of the impugned order I find that there is no registration of F.I.R. and the learned C.M.M. has passed the order in connection with Cyber Police Station G.D. Entry No. 582 dated 17.06.2017. After going through the first part of the impugned order, I find that there was a prayer for issuance of notice under Rule 10 of Information Technology Rules 2009. The Investigating Officer has mentioned that due to such contents of Facebook, there may be some subversive activities against the Government, and there is reasonable apprehension that it may invite other turbulent activities in that area. The learned C.M.M. has passed the order "the prayer of Investigating Officer is allowed." No reason is mentioned. From the second part of the order, it appears that the O/C cyber-crime has prayed for issuance of notice under Rule 10 of Information and Technology Rules 2009, upon the group co-ordinator Cyber Law Division, Department of Electronics and Information Technology, 6, C.G.O. Complex, Lodhi Road, New Delhi- 110003 for blocking of the Facebook page and the links. This time also the learned C.M.M. has passed the order "the prayer of Investigating Officer is allowed." Similarly no reason is there. Therefore, it is crystal clear that there is no application of mind by the learned C.M.M. It is perhaps needless to say that an order without assigning any reason is an order non-est. Therefore, the grievance of the petitioner that the learned trial court did not apply his mind is amply justified. There being no registration of F.I.R., how the Investigating Officer has made a prayer before the learned C.M.M.?
5. Now, this court is under an obligation to see whether the procedural aspects have ben complied with or not. Learned Counsel appearing on behalf of the petitioner contended that the provisions laid down in Information and Technology (procedure and safeguards for blocking for access of information by public) Rules 2009 have not been complied with. According to him, it ought to have been routed through by the designated officer. To come to a finding relevant provisions of the said rules are to be recapitulated. Rule 3 deals with designated officer. It says 'The Central Government shall designate by notification in Official Gazette, an officer of the Central Government not below the rank of a Joint Secretary, as the "Designated Officer", for the purpose of issuing direction for blocking for access by the public any information generated, transmitted, received, stored or hosted in any computer resource under sub-section (2) of section 69A of the Act.' Rule 4 speaks "Every organization for the purpose of these rules, shall designate one of its officer as the Nodal Officer and shall intimate the same to the Central Government in the Department of Information Technology under the Ministry of Communications and Information Technology, Government of India and also publish the name of the said Nodal Officer on their website. Rule 5 contends Direction by Designated Officer.-The Designated Officer may, on receipt of any request from the Nodal Officer of an organization or a competent court, by order direct any Agency of the Government or intermediary to block for access by the public any information or part thereof generated, transmitted, received, stored or hosted in any computer resource for any of the reasons specified in sub-section (1) of section 69A of the Act. Rule 6. Forwarding of request by organisation.-(1) Any person may send their complaint to the Nodal Officer of the concerned organisation for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource:
Provided that any request, other than the one from the Nodal Officer of the organisation, shall be sent with the approval of the Chief Secretary of the concerned State or Union territory to the Designated Officer.
Provided further that in case a Union territory has no Chief Secretary, then, such request may be approved by the Adviser to the Administrator of that Union territory.
(2) The organisation shall examine the complaint received under sub-
rule (1) to satisfy themselves about the need for taking of action in relation to the reasons enumerated in sub-section (1) of section 69A of the Act and after being satisfied, it shall send the request through its Nodal Officer to the Designated Officer in the format specified in the Form appended to these rules.
(3) The Designated Officer shall not entertain any complaint or request for blocking of information directly from any person.
(4) The request shall be in writing on the letter head of the respective organisation, complete in all respects and may be sent either by mail or by fax or by e-mail signed with electronic signature of the Nodal Officer:
Provided that in case the request is sent by fax or by e-mail which is not signed with electronic signature, the Nodal Officer shall provide a signed copy of the request so as to reach the Designated Officer within a period of three days of receipt of the request by such fax or e-mail.
(5) On receipt, each request shall be assigned a number alongwith with the date and time of its receipt by the Designated Officer and he shall acknowledge the receipt thereof to the Nodal Officer within a period of twenty four hours of its receipt."
6. In this case the State Government or the police authority did not draw the attention of the 'Designated Officer' whose duty it was to issue direction in terms of Sub-Section (2) of Section 69A of the Act. The word "Organisation" is defined in terms of Rule 2 of the aforesaid rules:-
"Organisation" means-
(i) Ministries or Departments of the Government of India;
(ii) State Governments and Union territories;
(iii) any agency of the Central Government, as may be notified in the Official Gazette, by the Central Government;
On a conjoint reading of Rule 5 and Rule 6 it appears that the designated officer upon a request from the Nodal Officer of an organisation or a competent court by order direct any agency of the Government or intermediary to block for access by the public any information. The said rules of 2009 also speak that even if any information other than the one from the Nodal Officer of the organisation is received, shall be sent with the approval of the Chief Secretary of the State to the appropriate authority for blocking of access. Admittedly, in this case those procedures and those rules were not complied with at all.
7. The learned Advocate General Mr. Kishore Dutta has submitted that situation was of such a nature for which the blocking of access to those pages were the need of the hour. Due to exigency they have drawn the attention of the competent court. He argued that a competent court may pass such an order. Of course, the court has the power to deal with the issue in extreme circumstances. It cannot be ruled out that for such contents of Facebook, there was likely to cause disturbances of law and order in that locality. It is our common knowledge that at the relevant point of time an agitation of violent nature was going on to separate hill areas from the State of West Bengal and chance of emotional blackmailing was also there. The sentiments of some people of hill areas and at the same time emotions of many persons of other parts of West Bengal were there. A small faction of people demanded for separation and other group of people did not want separation. Therefore, contents of Facebook might create trouble, and that was the view of the Government.
8. Learned Advocate General contended, referring Para 4 of the affidavit in opposition, that Section 69A of the Act nor the rules provide that an F.I.R. is to be registered and that G.D. entry is not sufficient. Practically this submission is devoid of any merit. On a careful reading of Section 69A (1), it appears that to prevent incitement to the commission of any cognizable offence an officer specially authorized can invoke the said rules. It is perhaps needless to say that if any cognizable offence is made out the officer-in-charge of a police station is bound to register the same. This is mandatory and not optional. Here the police authority sensed about the cognizable offence, yet no F.I.R. was lodged. Therefore, if any chance of committing any cognizable offence is made out and for which action is required to be taken under Section 69A of the Act, F.I.R. is mandatory. Admittedly in this case that has not been done. The very act does not say that the Court is authorized to do it. The Court assumes its jurisdiction only in terms of Rule 5 and Rule 10 I.T. (procedure and safeguards for blocking for access to information by public) rules.
9. In the interest of academic discussion I may be permitted to reproduce Section 69A. [S. 69A. Power to issue directions for blocking for public access of any information through any computer resource.- (1) Where the Central Government or any of its officers specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing by order, direct any agency of the Government or intermediary to block for access by the public any information generated, transmitted, received, stored and hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.]
10. In the aforesaid sections it is clearly mentioned that the Central Government or any of its officers specially authorized by it in this behalf, order for preventing incitement to the commission of any cognizable offence and in so doing he has to record his reasons in writing and only then a direction can be given to the agency concerned. A court can never be an authorized officer of Central Government. Only rider has been given under Rule 5 and 10 of the said rules where the competent court can do it. Therefore, the argument advanced by the learned Advocate General is demonstratably unsustainable.
11. Regarding jurisdiction of the Court, he contended referring a notification dated 23rd August, 2010, that the learned C.M.M. court is to take cognizance of the cases arising out of cyber police station. In reply, learned Counsel appearing on behalf of the petitioner contended that the so called incitement to the offence took place in the District of Darjeeling and for which the learned C.M.M., Kolkata has no jurisdiction at all. The learned Counsel appearing on behalf of the petitioner contended that the learned C.M.M. could have acquired jurisdiction if the subject consent was posted from within the territorial jurisdiction of the learned C.M.M. I am unable to espouse the same on the ground that if the contents are visible in Kolkata, the learned C.M.M. has the jurisdiction to entertain it. I am in respectful disagreement with him on the ground that whoever is aggrieved due to any contents of the Facebook has the right to approach before the concerned authority or nearest court of his locality. Here the stand of the state is such, that at the time of surfing internet of Facebook, Kolkata Police has noticed it and naturally Kolkata Police Cyber Crime Police Station approached before the learned C.M.M. But in this case no F.I.R. was lodged by the Cyber Crime Police Station. Only a G.D. entry was lodged and on the basis of that learned C.M.M. has assumed his jurisdiction. The jurisdiction of learned C.M.M. cannot be overruled, but whether the action taken by learned C.M.M. under a G.D.E. is lawful or not that will be considered later.
12. The learned Advocate General further submitted that power under Section 69A of the Information Technology Act 2000 is pari materia of Section 144 of Cr.P.C. Let me examine his such contentions in the light of the aforesaid provisions.
Section 69A of the Act is to be exercised by a particular authority as envisaged in the Act. The scope of exercising that section is also specified there i.e. 'in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence.'
13. Section 144 of Cr.P.C. deals with circumstances, when the same can be exercised i.e. "to prevent or tends to prevent, obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbances of the public tranquillity or a riot or an affray".
14. Therefore, scope of exercising the aforesaid sections are well defined. Section 69A is having a penal section and the intermediary who fails to comply with the directions under Section sub-section 1 shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.
15. The order of the Executive Magistrate in connection with Section 144 Cr.P.C. is valid normally for sixty days but the State Government may extend it for six months more.
16. The argument canvassed by the learned Advocate General does not impress me much. An Executive Magistrate cannot pass any order beyond his territorial jurisdiction. Jurisdiction of cyber law is wide enough and for that reason Section 69A of the Act is codified and our Hon'ble Apex Court clearly held that Information Technology Act is a complete code.
17. Learned Advocate General further contended that there are some Metropolitan Magistrates, who enjoy the jurisdiction and power of an executive court. It is true that the Metropolitan Magistrates viz. Metropolitan Magistrate Court No. 10 and Court No. 3 enjoy that executive power. But the learned C.M.M. cannot enjoy that power unless notified. Therefore, this argument also does not hold any water.
18. Learned Special P.P. Bibhash Chatterjee, after supporting the contention of the state, argued that in view of Rule 7 and Rule 8(4) of IT (Procedure and Safeguards, ete.) Rules 2009 that there is a committee for examination of request. Rule 9 speaks "In case of an order from a competent court in India for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, the Designated Officer shall, immediately on receipt of certified copy of the court order, submit it to the Secretary, Department of Information Technology and initiate action as directed by the court." According to him, since there is a court order so the designated officer sent it to the Department concerned. According to him, there is no such illegality.
19. Learned Additional Solicitor General contended that they have nothing to say because as a component part of federal structure of our constitution they have done their duties i.e. 'Raj Dharma'. He submitted categorically that they have not gone into the merit of the application nor considered the merit of the order of the court in any way.
20. Question was raised by the learned Advocate General that the Court can pass an order on the basis of GDE. The word G.DE is not defined in the code. Section 154 Cr.P.C. speaks "....... reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. The said register is popularly known as formal F.I.R. The written complaint is attached to it. The Section 155 (1) Cr.P.C. also speaks" ..... he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe ........... It deals with non-cognizable offence and other informations excluding cognizable offence. In a case of non-cognizable case, the police cannot investigate without the order of the magistrate. The learned C.M.M. while passing the impugned order did not consider all these aspects in its proper perspectives.
21. The learned Counsel appearing on behalf of the petitioner referred to the decisions reported in Gopalji Prasad vs. State of Sikkim (1981 CRLJ 60), the celebrated judgment in case of Shreya Singhal vs. Union of India (2015) 5 SCC 1. Since the ratio of those judgments are well settled and still holds the field, I do not like to discuss them in detail.
22. From the aforesaid discussion, it is crystal clear that learned C.M.M. has passed the order on a wrong premise. He did not apply his mind, nor considered the scope of application of the Information Technology Act and relevant rules. Accordingly, the impugned order is set aside.
23. But at the same time it cannot be said that the road is closed for ever. The State Government, after observing the legal formalities as mentioned in the special statute, may invoke the same, if situation so warrants and still prevails. After all 'law and order' is the urgent desideratum of the state.
24. Therefore, the omega is the revisional application succeeds.
25. Let a copy of this order be sent to the learned trial Court for information and taking necessary action, as well as to the Director General of Police, West Bengal for necessary action.
26. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R/N.A.F.R.