Student arrested for Facebook Post

A class 11 student has been arrested for posting on facebook an alleged statement of Mr. Azam Khan, U.P. Minister.

I have perused the post. It is certainly objectionable, and Mr. Azam Kan has denied making such a statement.

The statement says " Secularism and love of nation is forbidden in Islam ". This is certainly objectionable, and is likely to incite communal feelings. Even if it has only been shared, that makes no difference. In a country with so much diversity as ours we must take care not to hurt the feelings of any community. To say that love of the  nation is forbidden in Islam is bound to hurt the feelings of Muslims, the vast majority of whom are as patriotic as the vast majority ofHindus.

 However, in my opinion, instead of arresting the boy the better course of action would have been for Mr. Azam Khan  to have denied issuing such a statement, and asked for removal of that post from facebook.

 It may be mentioned that arrest is not a must in every case where an F.I.R. of a cognizable offence is registered with the police. This is obvious from section 157 (1) Criminal Procedure Code. which reads :

"  157. Procedure for investigation

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; "

The use of the words  "and, if necessary "  in the above provision clearly indicates that it is not incumbent on the police to arrest in every case, rather it is discretionary.

 In Joginder Kumar vs. State of U. P. A.I.R. 1994 S.C. 1349 ( see online ) the Supreme Court observed : " No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. 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 for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and  bona fides of a complaint and a reasonable belief both as to  the person's complicity and even so as to the need to effect arrest.  Denying a person of his liberty is a serious matter. "

 Thus the Supreme Court has held that arrest is not a must in every case. In the same decision the Supreme Court has noted that the National Police Commission in its Third Report has observed that 60% arrests in India are unnecessary or unjustified, and that arrests are a major source of corruption in the police.

 In my opinion arrest was unnecessary in this case, and the boy should have been let off with a warning and told to remove the objectionable post.

https://www.youtube.com/watch?v=KlbSEwnzajY

Congratulation Letter To Maharashtra CM

Dear Chief Minister,

This is just to congratulate you on your strong step in suspending the police officers who arrested the girl who put up an item on Facebook objecting to the shutdown in Mumbai on the death of Bal Thackeray, as well as the girl who supported her.

The Supreme Court (in the appeal coming from the judgment of the Kerala High Court ) and High Courts have repeatedly held that such Bandhs and shut downs are illegal as they paralyze the entire civic life in the city. Hence what the girls did was in accordance with the Supreme Court judgment. How then could their act be called illegal? In fact it was the policemen who arrested the girls who acted illegally and committed the criminal offences mentioned in sections 341 and 342 I.P.C.

        In the Nuremburg Trials the the Nazi war criminals took the plea that orders were orders, and they were only carrying out the orders of their superior Hitler. This plea was rejected by the International Tribunal, which held that such orders were illegal,and illegal orders should be disobeyed, and consequently those found guilty were hanged. 

If a policeman is issued an illegal order by his superior (whether political or police ) it is his duty to refuse to carry out such illegal order, otherwise he must be charged for a criminal offence, and  given harsh punishment. For instance, if a policeman is given an order by a superior to commit murder, dacoity or rape, he must not obey such order. It seems to me that the delinquent police officers who ordered the arrest of Shaheen and the other girl, and those who implemented this illegal order, succumbed to the pressure of the hundreds of hooligans who came to the police station. What kind of policemen are these who succumb to hooligans?

 You have therefore acted correctly in taking strong action in the matter.

   I am informed that in recent years hooligan gangs have flourished in Mumbai and other parts of Maharashtra, and they have terrorized people living in the state. Some of them profess a separatist ideology. In my opinion these should be crushed with an iron hand, and it is your duty, as the Chief Minister to do this, as Chanakya has advised in the Arthashastra, and Bheeshma Pitamah in his upadesh to Yudhishthir in the Shantiparva of Mahabharat.

  Regards

  Justice Katju