Why the Arrest of Journalist Prashant Kanojia by UP Police is Illegal?

In what could be termed as an attempt to use the coercive arm of law to muzzle voices against power, freelance journalist Prashant Kanojia was arrested by Uttar Pradesh police from his Delhi residence on Saturday afternoon. The arrest was over "objectionable comments" made by Kanojia in social media against UP Chief Minister Yogi Adityanath, who also handles the Home Department.

Kanojia, an alumnus of Indian Institute of Mass Communications Delhi with work experience in The Indian Express and The Wire Hindi, shared in twitter a news item about a woman claiming that she was in a relationship with Yogi Adityanath and that she wanted to marry him. The news was shared by Kanojia on Thursday evening with a mocking comment. Within two days, UP police swung into action, picking up Kanojia from his home in Delhi's West Vinod Nagar residence for an FIR registered by Hazratganj Police Station, Lucknow.

For the purpose of this article, let us proceed with the premise that the news item shared by Kanojia is untrue and that his comments are distasteful. Even then, the arrest is not sustainable in law. It appears to be a blatant abuse of power because the offences in the FIR do not justify the arrest.

The FIR, lodged "suo moto" by UP Police, is registered under Section 500 of the Indian Penal Code and Section 66 of the Information Technology Act alleging that Kanojia had made defamatory comments against Yogi Adityanath from his "twitter social media", with an attempt to "malign the image of the Chief Minister ".

Firstly, criminal defamation under Section 500 IPC is a non-cognizable offence, meaning that police cannot take direct cognizance of it by registering FIR. Action for criminal defamation can be taken only on a private complaint filed before a Magistrate. As per Section 41 CrPC, arrest without warrant can be made only in relation to cognizable offences.

Secondly, Section 66 of the IT Act, though a cognizable offence, has no application in the case. This provision, which deals with "fraudulently/dishonestly damaging a computer system", has no relevance here. Has the tweet by Kanojia damaged any computer system, that too fraudulently or dishonestly? This is an absurd question to ask, but the circumstances compel it. It is apparent that this Section has been arbitrarily added in the FIR.

After intense outrage started pouring in against the arrest of Kanojia, the UP police resorted to damage control mode by issuing a press statement. The statement improved the initial case by adding that Kanojia made "obscene comments" and "spread rumours" on social media. Perhaps with the intention of making the arrest look legal, the statement mentioned two additional provisions - Section 505 of the Indian Penal Code and Section 67 of the Information Technology Act -which are not stated in the FIR. Even these provisions are not relevant in the case.

Section 505 deals with making, publishing or circulating any statement, rumour or report, with intent "to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility". It also deals with statements which are likely to incite communal hatred. Essentially, Section 505 deals with statements which can lead to law and order issues, and is relatable to restrictions on free speech in the interests of "public order" under Article 19(2) of the Constitution. It does not take much thinking to hold that this is wholly inapplicable in the case. It is unfathomable how a statement, whether true or false, about the private life of the Chief Minister can be termed as causing "public mischief" by inciting persons to commit offences against the State or public tranquility.

Section 67, which is mentioned as an after-thought, deals with transmission of obscene materials online. Clearly, this is also not applicable here, as the news item shared by him - a press statement given by the woman before media- cannot be termed "obscene" by any stretch of imagination. The statement by UP police even added that Kanojia had admitted the crime after "strict questioning".

This is nothing but a mischief played by the Police to sway public opinion against him, as a confession made by accused in police custody has no evidentiary value. Arrests contrary to CrPC and SC precedent Even if it is assumed that the above mentioned charges are applicable, the arrest is still illegal. None of these offences prescribe punishment of imprisonment for a term higher than seven years. The maximum punishment is under Section 67 IT Act, which is five years' imprisonment, that too only in a case of repeat incident. Therefore all these sections fall under the class of offences where arrest should be the exception.

As per Section 41 of the Code of Criminal Procedure, arrest for offences which are punishable with imprisonment up to seven years can be made only in exceptional circumstances. According to Section 41(1)(b)(ii), CrPC, before making arrest in such cases, the police officer has to record satisfaction in writing that arrest is necessary:

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured.

The import of this provision is that if a person is made accused for an offence which is punishable with less than 7 years imprisonment, police can make arrest only in extra-ordinary circumstances. Instead of arresting the person at the first instance, the police should serve notice on him under Section 41A CrPC asking him to appear for investigation on prescribed dates. Arrest in such cases can be made only after police officer records exceptional reasons in writing.

This has been explained by the Supreme Court in Arnesh Kumar v. State of Bihar AIR 2014 SC 2756. This provision was incorporated in the CrPC by 2009 amendment as a safeguard against arbitrary arrests. Emphasising the need for checks on power of arrests, the SC said in Arnesh Kumar case:

"Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. 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 and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation".

In this case, the UP police has not listed out any extraordinary reasons which made them carry out the hasty arrest of Kanojjia from a place outside their jurisdiction. The subsequent statement issued by them has no whisper regarding the special circumstances which made Kanojia's arrest unavoidable. The statements made by Kanojia could be deeply disturbing to the CM. But that is not a justification for arrest without the authority of law.

Instances such as these show why journalism continues to be a risky profession in India, which has been dropping down on World Press Freedom Index over past several years, only to be ranked at 140 out of 180 countries this year.