A need for this blog post was felt as we at sflc.in have recently seen indiscriminate use of S.91 of the Code of Criminal Procedure, 1973 (CrPC) by police officers to demand a wide range of information from Internet intermediaries and users that is beyond their powers under the provision.
The recent instance was a case where the police shot across a notice to a vernacular portal based on a complaint by a media house. The media house had in its complaint alleged that an article published by the portal on the labour issue in the organisation was defamatory. The notice sent by the police demanded the portal to delete the article and to furnish the registration details of the URL(sic). The notice is in effect styled as an order censoring the content. This is not an isolated instance and we have seen such notices received by other intermediaries too.
Let us look at what the provision is all about. The section states :91. Summons to produce document or other thing. Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
In short, the provision gives the powers to a court or a police officer in charge of a police station to ask for production of any document for the purpose of investigation. Now, let us examine the powers or the lack of it of an officer in charge of a police station under this section in the case of online content:Deletion/blocking of content - The provision only enables the police officer to conduct an investigation and can by no stretch of imagination be used as a censorship tool to delete or block content. Even in the case of books or newspapers or other documents, the State Government will have to notify an order forfeiting such book or newspaper and only based on such an order can a police officer seize such publications as per Section 95 of the CrPC. This cannot be done under S.91 of CrPC. The means by which a direction can be issued to block content is under S.69A of the Information Technology Act, 2000 as per procedures laid down under Information Technology (Procedures and safeguards for blocking for access of Information by Public) Rules, 2009 or by an order from a competent court. Investigation in the case of non-cognizable offences - Defamation is an example of a non-cognizable offence. As per Section 155 (2) of the Code of Criminal procedure, in the case of a non-cognizable offence, a police officer cannot conduct an investigation without obtaining permission from a Magistrate Court. However, it is often seen, as in the case of the instance cited earlier, that the police proceed with the investigation irrespective of the nature of the offence. The Hon’ble Supreme Court has held in State of Haryana v/s Bhajan Lal, 1992 Supp (1) SCC 33 that criminal proceedings can be quashed under Section 482 of CrPC on the ground that where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate. Thus, investigation of a defamation case under Section 91 of CrPC is illegal and is not permissible. Demanding information from the accused - Article 20 (3) of the Constitution of India provides citizens the right against self-incrimination, or a right against testimony that would be against his interest in a case. The Hon'ble Supreme Court has held in State Of Gujarat V. Shyamlal Mohanlal Choksi (196 5 M.L.J. (Crl.) 417) that section 94 of the Criminal Procedure Code (old Code and presently Section 91) on its true construction does not apply to an accused person. Thus, S.91 of Cr.PC cannot be used by the police for asking information from an accused in an online defamation case.
An online portal or a user on receiving a a notice under Section 91 CrPC should try to understand the nature of the offence alleged. Many a times the notice might only mention the Sections of the Indian Penal Code or the Information Technology Act and it will be better to do a quick search on the Internet (You could refer http://indiacode.nic.in/ or http://www.indiankanoon.org) to get an idea of the relevant provisions. It is essential to submit a response to the notice received. It is better to consult a lawyer to get an opinion on the notice and to draft a response to ensure that you don't end up over-complying with the requests in the notice.
Disclaimer: This blog post does not constitute legal advice and sflc.in cannot be held liable for any action that you choose to take based on this.