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TMI Blog2022 (7) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Petitioner. The raison d etre of the powers of arrest in relation to cognizable offences is laid down in Section 41. Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. The criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the Code of Criminal Procedure as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual. Merely because the complaints filed against the Petitioner arise from posts that were made by him on a social media platform, a blanket anticipatory order preventing him from tweeting cannot be made. A blanket order directing the Petitioner to not express his opinion - an opinion that he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the course of the investigation, which has been carried out in pursuance of FIR No. 172 of 2022, before the Additional Sessions Judge. The status report notes the course of the investigation which spans into tweets alleged to have been put out by the Petitioner. According to the status report, "for the purpose of recovery of the laptop and mobile phone used in committing this crime and for the purpose of interrogation of the Accused to find out other tweets/posts and larger part of the conspiracy, if any, Mohd. Zuber was arrested in this case on 27.06.22. He disclosed that he is co-founder of ALT News and in order to gain popularity he posts such contents/post that triggers religious sentiment and he remain trending in news/social media and he can get recovered the laptop and mobile phone used in committing this crime". 4. The status report has also adverted to seven tweets put out by the Petitioner on the basis of which the Police at the Special Cell is continuing its investigation. The extract from the status report submitted by the Delhi Police in regard to the above tweets reads as follows: (i) Tweet 1: Against Mahant Bajrang Muni Ji of Rashtriya Hindu Sher Sena, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 10 June 2022 registered at PS Sikandrarao, Hathras for offences punishable Under Sections 147, 149, 153A, 353, 188, 120-B of Indian Penal Code and Under Section 7 of the Criminal Law Amendment Act 1932 "CLA"; and (vii) FIR No. 237/2022 dated 4 July 2022 registered at PS Hathras Kotwali for offences punishable Under Sections 153-A, 295-A, 298 of Indian Penal Code and Section 67 of the IT Act. 6. The status of the FIRs is indicated below: (i) In FIR No. 199/2021 registered at Police Station Charthawal, the Petitioner was granted bail on 30 July 2021 by the Judicial Magistrate; (ii) In FIR No. 511/2021 registered at Police Station Mohamadi, the Petitioner was remanded on 11 July 2022 to fourteen days of judicial custody. An application seeking police custody was listed for submissions on 20 July 2022; (iii) In FIR No. 226/2022 at Police Station Khairabad, the Petitioner was remanded to judicial custody for 14 days by the JMFC-I, Sitapur on 4 July 2022 and to police custody between the period from 8 July 2022 until 14 July 2022. By an order of this Court dated 8 July 2022, the Petitioner was granted interim bail in Special Leave Petition (Crl.) No. 6138 of 2022. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Special Cell of Delhi Police. 9. Office Memorandum No. DG-8-94-(30) of 2022 "OM"has been issued on 10 July 2022, in terms of which a Special Investigation Team "SIT" has been constituted by the Director General of Police, Uttar Pradesh for investigating the six FIRs which have been registered against the Petitioner in Uttar Pradesh. 10. Apart from the prayer for quashing the FIRs or, in the alternative, for clubbing the investigation of the six FIRs mentioned in the OM with the FIR which is pending investigation before the Special Cell in Delhi, the Petitioner seeks interim release on bail in all the FIRs, which are set out above, and a protective order of this Court directing that no coercive steps be taken with respect to FIR 193 of 2021, PS Chandauli. 11. The petition was mentioned before this Court for urgent orders on 18 July 2022 with the permission of the Hon'ble Chief Justice of India. While entertaining the petition on 18 July 2022, this Court directed that no precipitate steps shall be taken against the Petitioner on the basis of the five FIRs which form the subject matter of these proceedings. Notice was issued by this Court on 18 July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh; and (v) The Petitioner has a real and genuine apprehension in regard to the safety and security of his life following the publication of several tweets which have administered threats and placed a bounty on his safety. 15. Hence, it has been submitted that in the exercise of its jurisdiction Under Article 32 of the Constitution, the Court should quash the FIRs since none of the tweets on the basis of which FIRs have been registered provokes hatred towards any community or is derogatory to any religion or a religious denomination. 16. Opposing these submissions, Ms. Garima Prashad submitted that: (i) There is a genuine apprehension that the tweets which have been put out by the Petitioner have spread hate; (ii) The tweets which have been put out by the Petitioner have a real potential to create a communal divide; (iii) The SIT was formed by the State of Uttar Pradesh considering the gravity of the situation, in order to maintain peace and harmony; and (iv) The conduct of the Petitioner in engaging in repeated acts of tweeting would justify the invocation of criminal law. 17. The narration of facts in the prefatory part of the judgment would indicate that FIR N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings, Under Article 32 of the Constitution. The existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly. In the present case, there is absolutely no justification to keep the Petitioner in continued custody any further and to subject him to an endless round of proceedings before diverse courts when the gravamen of the allegations in each of the said FIRs arises out of the tweets which have been put out by the Petitioner, and which also form the subject matter of the investigation being conducted by the Delhi Police in FIR 172/2022. 21. In Arnab Ranjan Goswami v. Union of India (2020) 14 SCC 12, while dealing with the issue of a multiplicity of proceedings and harassment to the Accused, a two judge bench of which one of us (Dr. D.Y. Chandrachud) was a part, held: 32. Article 32 of the Constitution constitutes a recognition of the constitutional duty entrusted to this Court to protect the fundamental rights of citizens. The exercise of journalistic freedom lies at the core of speech and expression protected by Article 19(1)(a). The Petitioner is a media journalist. The airing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions. (emphasis supplied) 22. As regards the prayer for quashing of the FIRs, an essential aspect of the matter which must be noticed at this stage is that the investigation by the Special Cell of the Delhi Police in FIR No. 172/2022 pertains to offences of a cognate nature to those which have been invoked in the FIRs which have been lodged before the Police Stations in Uttar Pradesh. Before this Court can embark on an enquiry as to whether the FIRs should be quashed, it is appropriate that the Petitioner pursues his remedies in accordance with the provisions of Article 226 of the Constitution and/or Section 482 of the Code of Criminal Procedure. However, a fair investigative process would require that the entirety of the investigation in all the FIRs should be consolidated and entrusted to one investigating authority. The overl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricts spanning two states for the purposes of investigation, and defend himself before multiple courts, all with respect to substantially the same alleged cause of action. Resultantly, he is trapped in a vicious cycle of the criminal process where the process has itself become the punishment. It also appears that certain dormant FIRs from 2021 were activated as certain new FIRs were registered, thereby compounding the difficulties faced by the Petitioner. 26. Police officers are vested with the power to arrest individuals at various stages of the criminal justice process, including during the course of investigation. However, this power is not unbridled. In terms of Section 41(1)(b)(ii) of the Code of Criminal Procedure, the police officer in question must be satisfied that such arrest is necessary to prevent the person sought to be arrested from committing any further offence, for proper investigation of the offence, to prevent the arrestee from tampering with or destroying evidence, to prevent them from influencing or intimidating potential witnesses, or when it is not possible to ensure their presence in court without arresting them. 27. Police officers have a duty to apply th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 437 of Code of Criminal Procedure. The phrase 'interest of justice' has been interpreted in prior judgments of this Court where it has been held that the discretion of the Court in imposing conditions on bail must be exercised judiciously and to advance a fair trial. Kunal Kumar Tiwari v. The State of Bihar, (2018) 16 SCC 74; Dataram Singh v. State of Uttar Pradesh; Sumit Singh v. State (NCT of Delhi), (2013) 15 SCC 570. The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the Accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed. In the decision in Parvez Noordin Lokhandwalla v. State of Maharashtra (2020) 10 SCC 77, a two-Judge Bench of this Court, of which one of us (Dr. D.Y. Chandrachud) was a part, it was observed that bail conditions must not be disproportionate to the purpose of imposing them: 21. [...] The conditions which a court imposes for the grant of bail - in this case temporar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irabad, district Sitapur, Under Section 295-A(2) Indian Penal Code and Section 67 of IT Act. e) FIR No. 286/2022 dated 10.06.2022, PS Sikandrarao, Hathras, Under Section 147, 149, 153A, 353, 188, 120-B of Indian Penal Code and Under Section 7 of the CLA Act; and f) FIR No. 237/2022, dated 04.07.2022, PS Hathras Kotwali on a complaint dated 14.06.2022 Under Section 153-A, 295-A, 298 Indian Penal Code and Section 67 of the IT Act; (ii) As regards Crime No. 199 of 2021 dated 24 July 2021 registered at PS Charthawal, Muzaffarnagar, the charge-sheet Under Section 173 of Code of Criminal Procedure has been filed. The proceedings in respect of the said Case Crime shall stand transferred to the Chief Judicial Magistrate, Patiala House Courts and shall be taken up from the stage that has been reached before the earlier Court. The Petitioner has been enlarged on bail. The order enlarging the Petitioner on bail shall continue to remain in force; (iii) The investigation into the FIRs set out in paragraph (i) above shall stand transferred from the Uttar Pradesh Police to the Special Cell of the Delhi Police. As a consequence, the SIT which was constituted by the Director General of Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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