9 yrs after arrest over CM Banerjee’s cartoon, Kolkata professor fears new case

The CJM ordered that the case will be heard again in November to consider “whether any case under Section 500/509 of the Indian Penal Code (IPC) or any other law can be made out against the accused”.
Arrested first in April 2012, AmbikeshMahapatra said he does not know how many years he will have to visit the courts (Photo Courtesy- ANI)
Arrested first in April 2012, AmbikeshMahapatra said he does not know how many years he will have to visit the courts (Photo Courtesy- ANI)
Published on Sep 19, 2021 05:09 PM IST
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Nine years after he was arrested for allegedly forwarding a cartoon on chief minister Mamata Banerjee, then junior Union railway minister Mukul Roy and his predecessor in office Dinesh Trivedi to members of the email group at his housing society in the southern outskirts of Kolkata, Jadavpur University professor Ambikesh Mahapatra found on September 14 that his legal battle with the state was far from over.

Though charges under a defunct section of the Information Technology Act was dropped, the trial court said it will continue to hear the case because the de facto complainant, a Kolkata citizen, intends to press charges of defamation and insult to the modesty of a woman, who, in his case is the chief minister who has so far taken no legal step.

Following their arrest in April 2012 by the East Jadavpur police station, Mahapatra, a chemistry professor, and Subrata Sengupta, then a septuagenarian retired engineer, were accused in the 2013 charge-sheet under Section 66A (b) and (c) of the of the Information Technology Act, 2000.

Sengupta, who was secretary of the housing society in New Garia, was additionally charged under Section 109 of the Indian Penal Code (IPC) which pertains to aiding and abetting in a criminal act.

Though both were released on bail hours after the arrest, the police action triggered a stir since it was the first of its kind in West Bengal. Opposition parties, intellectuals, rights groups and citizens raised their voice, pointing out that the cartoon’s theme was based on a line from the script of Sonar Kella, the first movie Satyajit Ray made in the 1970s on Pradosh Mitter, the iconic detective he created for children. The child protagonist in Ray’s story was also named Mukul.

Trinamool Congress (TMC) leaders countered the arguments, saying the cartoon was circulated with mala fide intention.

While Section 66A of the IT Act was struck down by the Supreme Court in 2015 in the Shreya Singhal vs. Union of India case, as unconstitutional, the ground reality, however, did not change for the two accused in the cartoon case.

Sengupta, who was ailing and had to undergo a kidney surgery, died in 2019 at the age of 80, two years after moving the Calcutta high court to seek quashing of the charges. The court passed an interim order in his favour while hearings continued in the trial court.

Current case status

On September 14, while hearing Mahapatra’s petition for discharge, Subrata Mukherjee, the chief judicial magistrate (CJM) of Kolkata’s Alipore court, where the case is being heard, dropped the charge under Section 66A of the IT Act.

“…. I am of the humble view that the striking down of the provisions of Section 66 A of the IT Act in Shreya Singhal’s case has a retrospective effect and therefore applies to all pending proceedings as well and the accused Ambikesh Mahapatra deserves to be discharged from the charge…..” the magistrate said in the order. He also cited a Union home ministry instruction that asked the states in July this year to drop all cases filed under Section 66A. HT has seen a copy of the Alipore court order.

“The court did not let me go although the sole charge against me was dropped,” said Mahapatra.

After hearing the lawyers of Amit Sardar, the de facto complainant, the CJM ordered that the case will be heard again in November to consider “whether any case under Section 500/509 of the Indian Penal Code (IPC) or any other law can be made out against the accused” or, whether Mahapatra deserves to be discharged from the case.

While Section 500 of the Indian Penal Code (IPC) pertains to defamation, Section 509 recommends imprisonment of up to three years as well as fine for insulting the modesty of a woman.

“Although Sections 500 and 509 were mentioned in the initial police complaint filed in April 2012, these were dropped from the charge-sheet submitted in court a year later. Sardar now wants to press these charges. They can neither be argued nor proved unless Mamata Banerjee’s statement is recorded,” said Sanjib Ganguly, Mahapatra’s lawyer at the Alipore court.

In his order, the CJM said the de facto complainant had earlier filed a protest petition challenging the charge-sheet but it was dismissed by another judge in July 2015 after which no hearing took place.

“…from the order dated July 16, 2015, it becomes clear that the learned magistrate held that the opportunity of hearing must be given to the prosecution/de facto complainant to show or to argue that a case under section 509 IPC can be made out against the accused,” the CJM’s order said.

A lawyer representing Sardar said on condition of anonymity that the CJM’s order can be challenged in higher court. “We do not agree that the Supreme Court’s order on Section 66A of the IT Act has a retrospective effect,” he told HT.

Sardar, who resides in the Nayabad area located along the Eastern Metropolitan Bypass could not be contacted despite several efforts.

TMC legislator Tapas Roy, who is also a lawyer, said, “One cannot pass any comment on the decisions of a magistrate.”

Moving human rights commission and Calcutta high court

“I do not know how many years I have to visit the courts. Sengupta and I moved the West Bengal Human Rights Commission (WBHRC) in 2012 alleging unlawful arrest and violation of liberty. In August that year, the WBHRC granted us a compensation of 50,000 each and recommended departmental proceedings against two officers of East Jadavpur police station. We moved the Calcutta high court in 2013 after the state government rejected the WBHRC’s recommendations,” said Mahapatra.

“After hearing us and the government for one year, justice Dipankar Dutta of the Calcutta high court passed an order in March 2015. He upheld the WBHRC’s order and asked the state to pay us an additional cumulative sum of 50,000 to cover legal expenses. The government moved a division bench challenging the order but no hearing has taken place till now,” Mahapatra added.

HT saw a copy of justice Dipankar Dutta’s 60-page order.

“I am also convinced that it was not WBHRC but the police administration that was squarely responsible for blowing the incident out of proportion. Officers of the police administration ought to realise that the time is not far away when they may have to pay a heavy price for unwarranted, uncalled for and unjustified invasion of human rights of the people at large,” justice Dutta said in his concluding remarks.

What expert say

Eminent advocate and CPI(M) Rajya Sabha member Bikash Ranjan Bhattacharya, who represented the accused at the Calcutta high court, said, “It is unfortunate that the idiocy of the issue has gone to this level. Application of Sections 500 and 509 of IPC means the allegedly affected individual has to file a complaint but neither Mamata Banerjee nor anybody representing her in court has done that.”

A constitutional expert and former principal of Kolkata’s Presidency College, Dr Amal Mukherjee said, “I know Ambikesh. I am sure his purpose was not to insult anyone. He shared a cartoon just for fun. Right to this freedom is protected under Article 19 of the Constitution. The fact that he was arrested shows that we are not living in a democracy in West Bengal.”

“When I was the principal of Presidency College during the Left Front regime I used to write a column for a newspaper. I made fun of chief minister Buddhadeb Bhattacharya, Left Front chairman Biman Bose and other leaders. I also made funny remarks about Indian gods and goddesses. Nobody ever said a word,” said Mukherjee.

Noted human rights activist Sujato Bhadra, a former secretary of the Association for Protection of Democratic Rights, said he sees the action against Mahapatra as an act of revenge.

“Mahapatra was harassed. Those who shout about human rights violations in other states are encouraging Fascist practices on home ground. The government should apologise to Mahapatra. Even Nehru used to say that if cartoons on him stopped appearing it would mean he was losing popularity. Cartoons are an integral part of politics,” Bhadra added.

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Monday, October 18, 2021