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18. He would contend that the impugned Notice under Section 41A of Cr.P.C. is vitiated by malafides as it is only a retaliatory measure. That the provisions of Section 41A of Cr.P.C. have been invoked as the petitioner failed to comply with the earlier demand made by the respondent - police, invoking Section 160 of Cr.P.C. He would submit that initially on 17.06.2021, the Notice under Section 160 Cr.P.C. came to be served on the petitioner by electronic mail. Learned Senior counsel would take the Court thorough the contents of the Notice, which has been reproduced supra.

23. Learned Senior counsel would lay emphasis on the language deployed therein, more particularly, to contend that the person against whom a Section 41A Notice is directed must be a 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. He would submit that sub-section (1) of Section 41A of Cr.P.C. is not a guarantee against the arrest of the petitioner and that sub-section (3) of Section 41A of Cr.P.C. empowers the police officer to arrest such a person, albeit for reasons to be recorded i.e., if the police officer is of the opinion that he ought to be arrested and hence, he would submit that sub-section (1) of Section 41A of Cr.P.C. is not a safeguard to the petitioner against arrest. He would submit that the Notice and proceedings are motivated and it is the object of the respondent - police to put him behind bars as they have a axe to grind against Twitter Inc., USA. He would contend that so long as there is no compliance with the mandate or prescription as provided under sub-section (1) of Section 41A of Cr.P.C., no authority is vested in the respondent to invoke the provisions. He would submit that neither the statement of the respondent nor the materials placed before the Court demonstrate compliance with any of the criterion prescribed in sub-section (1) of Section 41A of Cr.P.C. If that be the admitted position, learned Senior counsel would submit that the impugned Notice has to be construed as one without jurisdiction or one without the sanction of law and that if the impugned Notice is construed to be as one without the sanction of law and is one which enables the respondent to take coercive action and if such action curtails the fundamental right of the petitioner, then it certainly creates a cause of action within the territorial jurisdiction of this Court.

41. From the short narration above, what emerges is that, the petitioner is not arrayed as an accused nor is it the case of the respondent that there is credible information received by them with regard to his involvement or that the respondent entertains a suspicion, which is based on reasonable grounds that he has committed any cognizable offence. In the absence of any of these three ingredients, the moot question that arises, is as to whether the respondent could have invoked Section 41A of Cr.P.C. at all? If the law mandates that the act be performed in a particular manner or if the law mandates that the vesting of right is contingent upon certain condition precedent or only in particular circumstances, it is needless to state that the act can be performed only in that manner or the right can be invoked only on compliance of the mandate. In the absence of the pre-conditions being made out, then the authority would necessarily be divested of the power to invoke the statutory provisions. In the instant case, in fact in the course of arguments, the respondent has made a categorical statement that the petitioner is being summoned not in his individual capacity but as a representative of the Company. It was also submitted that the purpose for which the petitioner has been summoned has also been made known and that as the reply has not satisfied or clarified the doubts entertained, the respondent deemed it necessary to invoke the provisions of Section 41A of Cr.P.C. On a reading of Annexure - A, the impugned Notice, the only ground which is made the basis for invoking Section 41A of Cr.P.C. is that as per the information of the respondent, the petitioner is the Managing Director of Twitter India and that he is a representative of Twitter in India and hence, for the said reason, the petitioner is bound by law to co-operate with the investigation. That Twitter India has the power to decide, which tweets are to be taken out of circulation in relation to India and despite knowing that the impugned news is fake news and despite it being within the authority and control to stop the spread of fake news, steps have not been taken by the petitioner.

45. It is not in doubt that the very impugned notice itself threatens the petitioner with punitive action and deprivation of liberty, which admittedly is a fundamental right. Hence, if the rights of the petitioner is viewed in the above background, it can be safely held that the contention of the respondent is misplaced.

46. In the light of the above discussion, with regard to the authority of the respondent to invoke Section 41A of Cr.P.C., it has been demonstrated in unmistakable terms that the petitioner, who is not an accused and there being no compliance with the condition precedents imposed under Section 41A of Cr.P.C., it can by no stretch of imagination be described as a reasonable exercise of power and thereby rendering it a colorable exercise. In that view of the matter, it can be held that the invocation of power under Section 41A of Cr.P.C. is without jurisdiction. Though a long list of rulings are relied upon, the rulings involves persons, who have either been arrayed as accused or the petition involves lis in a civil domain. In view of the above, it has to be concluded that the impugned Annexure-A Notice is vitiated and can be the premise for the petitioner to reasonably apprehend breach of his constitutionally guaranteed fundamental rights.