The Karnataka High Court on Tuesday while hearing a petition filed by Twitter India MD Manish Maheshwari came down heavily on the Ghaziabad police and asked whether it had prima facie established if the microblogging site had any control over the uploading of videos on its platform.
“What’s the connection between the crime alleged and the platform. Is it (Twitter India) even capable of having control over this (content)? Also, what’s the omission and commission here? Has the police established that?" Justice G Nagendra asked while hearing the petition.
During the hearing, Twitter India MD Manish Maheshwari told the Karnataka High Court that he was ready to appear before the police if they agreed to guarantee - in writing - that he would not be arrested.
Maheshwari had approached the court last month after the Ghaziabad police summoned him in a probe related to the assault of an elderly Muslim man in UP’s Ghaziabad.
The UP Police informed the court that it did not intend to arrest Maheshwari, it only wanted to question him.
The case, which had been adjourned for tomorrow after extensive arguments, saw some fireworks when Maheshwari’s counsel argued that the notice issued against him was merely an intimidatory tactic.
Advocate Prasanna Kumar, who argued for the Ghaziabad police, said that all the police was asking from Maheshwari was who was responsible for the operations.
“He claims to be the MD, his Linkedin profile claims he is the MD. Now, he says he is only an employee. All I’m asking is who is the person in charge of your India operations? That they don’t want to disclose. If he is the MD then come and give details. In a 41A notice, an arrest is not required. The other accused in the case like one Mohammed Zubair has come and given information and were let go after enquiry," Kumar told the court.
It was after this statement that Maheshwari told the court that he was willing to appear before the police either virtually or physically if such an undertaking can be given that “they won’t lay hands on him."
“If they only wanted to know who is in charge, why issue a notice under Section 41A? That notice is issued for investigation of a crime, where, if the officer has reason to record any kind of non-cooperation, he can arrest the person. That’s the power given to the investigator," Maheshwari’s counsel and famed defence attorney CV Nagesh argued.
Nagesh also argued that the police cannot name any person as a representative of a company when a company or a corporate entity is named as an accused in the case. It is left to the company to nominate a representative for itself before the police, he said.
“A notice under section 41A needs a cause of action against three categories of persons - a) a complaint is lodged against that person b) credible information is there against that person of commission of a cognisable offence and c) there is reasonable suspicion he has committed a cognisable offence. When these three categories are not satisfied, that notice is an act done without the sanction of law," Nagesh told the court.
He further told the court that there are three directors of Twitter India who are in charge and their names are listed with the Registrar of companies and are easily available in the public domain. Yet, a notice has been issued only to Maheshwari ‘just because he is available’ for a crime about a doctored video in which a different FIR has already been taken up under different sections of offences.
The FIR against Maheshwari is not under the IT act but lists Twitter as a company accused under sections of the IPC such as 153, 153A that relate to promoting enmity between classes, he said.
Nagesh also told the court that since June 21, the police have not tried to question Maheshwari - via virtual mode - if indeed all their effort was to find out who was in charge.
Justice G Nagendar, who presided over the case, wanted to know if the Ghaziabad police had taken any steps to ascertain what was the exact omission or commission in the said crime by Twitter India. “Whether Twitter India is capable of controlling the content, have you investigate that? Why have you not investigated? The whole problem is you don’t want to investigate," he commented.
Maheshwari, who lives in Bengaluru in Karnataka, was issued notice by the Ghaziabad Police earlier, asking him to report at its Loni Border police station on June 24 to get his statement recorded in the case, following which he moved the High Court here seeking relief. The court had then restrained the Ghaziabad police from initiating any coercive action against him.
Justice Narendra had earlier said that if the police wanted to examine Maheshwari, they could do so through virtual mode. In a video clip, which surfaced on social media on June 14, the elderly Muslim man, Abdul Shamad Saifi, alleged he was thrashed by some young men and asked to chant ‘Jai Shri Ram’.
The Ghaziabad Police had on June 15 lodged an FIR against Twitter Inc, Twitter Communications India, news website The Wire, journalists Mohammad Zubair and Rana Ayyub, Congress’ Salman Nizami, Masqoor Usmani, Dr Sama Mohammad and writer Saba Naqvi for sharing the clip. The police, who had ruled out communal angle in the incident, claimed the video was shared to cause communal unrest.