While directing further investigation into a case of casteist insult committed via social media, the Calcutta High Court has observed that the investigating agency cannot throw up its hands reporting "no clue" merely because a local cyber inquiry hit a dead end with an intermediary (Facebook/Meta), without exhausting specialised State CID cyber-forensic or IP-log tracking protocols.

The High Court was considering a criminal revisional application preferred under Section 482 read with Sections 395 and 397 of the Code of Criminal Procedure, 1973, whereby the de facto complainant/petitioner challenged the order passed by the Additional Sessions Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, rejecting the protest petition filed by the petitioner and accepting the Final Report True, No Clue (FRT) submitted by the police, and dropping the special proceeding.

The Single Bench of Justice Uday Kumar held, “When electronic screenshots and links are formally seized under a seizure list and corroborated by a Section 164 statement, the investigating agency cannot throw up its hands reporting "no clue" merely because a local cyber inquiry hit a dead end with an intermediary (Facebook/Meta), without exhausting specialized State CID cyber-forensic or IP-log tracking protocols.”

Advocate Shayan Sachin Basu represented the Petitioner while Advocate Achin Jana represented the State.

Factual Background

The petitioner, belonging to the Scheduled Caste community, lodged a written complaint alleging that the accused persons belonging to the general caste, hurled foul, unparliamentary, and casteist expletives targeting his caste identity, religion, God, and family through the social media platform ‘Facebook’. The said complaint culminated in a case under Section 3(1)(r)/(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The police submitted an FRT (Nil/No clue) stating that assistance sought from the Facebook authority through the Cyber Police Station, Kolkata, yielded no actual user particulars from Facebook. Upon receipt of the notice of closure, the petitioner filed a protest petition. By the impugned order, the Special Court rejected the petition, holding that since charge sheets had been filed in three other special cases instituted by the same complainant and a "Nil" charge sheet/FRT was filed after due investigation, no cogent reason to nullify the said FRT and order re-investigation was made out.

Reasoning

Referring to the judgment of the Apex Court in Bhagwant Singh v. Commissioner of Police & Anr.(1985), the Bench reiterated that upon submission of a final report, the Magistrate or Special Judge is duty-bound to evaluate the protest/naraji petition independently on its merits to ascertain whether cognizable material has been overlooked or if the investigation has been perfunctory.

The Bench noted that the Special Judge opined that the "Nil" report in the present case had to be accepted as the complainant had filed three other special cases where charge sheets were submitted. The Bench found such reasoning adopted by the Special Judge to be shocking. “Criminal jurisprudence examines every distinct criminal transaction and occurrence on its own foundational worth and evidentiary matrix. A litigant’s resort to law in prior or parallel separate transactions can never form a legal basis to non-suit or presume a lack of merit in a distinct subsequent grievance of casteist insult committed via digital media. Such reasoning is perverse and contrary to the basic tenets of criminal adjudication”, it added.

Referring to the judgment in Vinay Tyagi v. Irshad Ali alias Deepak & Ors., (2013), the Bench held that the failure of the trial court to direct further investigation through a higher supervisory rank (such as the Deputy Commissioner of Police tier or a specialized cyber cell) in the face of such digital material caused a serious miscarriage of justice.

Thus, setting aside the impugned order, the Bench quashed the acceptance of the FRT and the dropping of Special Case. “The matter is remanded to the Special Court, Alipore, with a direction that further investigation into Behala Police Station Case No. 274 dated 17.10.2022 shall be conducted under the direct supervision of the Deputy Commissioner of Police (South-West Division / Specialized Cyber Cell supervisory tier, Kolkata Police)”, it ordered.

Cause Title: Sri Sayan Mondal v. State of West Bengal (Case No.: CRR 2992 OF 2023)

Appearance

Petitioner: Advocate Shayan Sachin Basu

Respondent: Advocates Dr Achin Jana, Kritika Jai

Click here to read/download Order


Calcutta High CourtJustice Uday Kumar

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.