SUPREME COURT REITERATES GROUNDS FOR EXERCISE OF POWER OF ARREST BY POLICE

A Three Judge Bench of the Supreme Court comprising of Justice Dr Dhananjaya Y Chandrachud, Justice Surya Kant and Justice A S Bopanna passed a Judgment dated 20-07-2022 in Mohammed Zubair vs State of NCT of Delhi and Others, Writ Petition (Criminal) No 279 of 2022 and reiterated the grounds for exercising power of arrest by police and circumstances for grant of interim bail by the court.

Facts

In the present case, one, Mr Mohammed Zubair (Petitioner) is the co-Founder of ALT News, a fact checking portal launched in 2017 by Pravda Media Foundation, which is a company registered under Section 8 of the Companies Act 2013 (Formation of companies with charitable objects, etc). An FIR bearing No. 172 of 2022 was registered on 20-06-2022 at the Special Cell of Delhi Police for the following offences arising out of few Tweets posted by the Petitioner on Twitter allegedly hurting religious sentiments:

1. Section 153-A of the Indian Penal Code 1860 (IPC) (Promoting enmity between different groups on grounds of religion, race, place of birth, residence. language, etc., and doing acts prejudicial to maintenance of harmony),
2. Section 295-A of IPC (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs),
3. Section 201 IPC (Causing disappearance of evidence of offence, or giving false information, to screen offender)
4. Section 120-B IPC (Punishment of criminal conspiracy) and
5. Section 35 of the Foreign Contribution (Regulation) Act 2010 (Punishment for contravention of any provisions of the Act) that was added during the course of investigation.

The Petitioner was arrested on 27-06-2022 and remanded in police custody for one day, which was then extended for four days by the Ld. Chief Metropolitan Magistrate, Patiala House Court, Delhi (Trial Court). Thereafter, the Petitioner was remanded to 14 days judicial custody on 02-07-2022 and his Bail Application was rejected by the Trial Court. But his regular Bail Application was allowed by the Ld. Additional Sessions Judge on 15-07-2022.

Subsequently, seven other FIRs were registered against the Petitioner in Ghaziabad, Muzaffarnagar, Chandauli, Lakhimpur, Sitapur and Hathras in Uttar Pradesh in 2021 and 2022 for various offences under IPC and Information Technology Act 2002. In some of the cases, he was granted bail. Further, the Petitioner and Pravda Media Foundation were also summoned by the Police for production of documents including balance sheet, income tax returns, bank statements, etc.

Thereafter, the Petitioner filed a Writ Petition before the Supreme Court seeking quashing of the FIRs and interim release on bail in all such FIRs, etc. The Apex Court passed an Order dated 18-07-2022 and directed that no hasty steps would be taken against the Petitioner in those FIRs and future FIRs filed in respect of the said subject matter. The Supreme Court then passed a Judgment dated 20-07-2022 and made the following observations in this case:

1) That the exercise of the power of arrest has to be pursued sparingly by Police. In terms of Section 41 of the Code of Criminal Procedure 1973 (CrPC) (When police may arrest without warrant), the concerned police officer has to be satisfied that such arrest is necessary (i) to prevent the person sought to be arrested from committing any further offence, (ii) for proper investigation of the offence, (iii) to prevent the arrestee from tampering with or destroying evidence, (iv) to prevent them from influencing or intimidating potential witnesses, as arrest is not supposed to be used as a punitive tool because it results in loss of personal liberty.

2) That the Petitioner in this case has already been subjected to a sustained investigation by the Police. Hence, it not justified to further harass him and deprive him of his liberty any longer by subjecting him to endless rounds of multiple proceedings before diverse courts in all the cases filed against him. Thus, interim bail was granted to the Petitioner in each of the FIRs.

3) Further, the submission of the State Counsel that the Petitioner be banned from tweeting while he is on bail, could not be accepted by the Apex Court as a blanket order directing the petitioner to not express his opinion – an opinion that he is rightfully entitled to hold as an active participating citizen – would be disproportionate to the purpose of imposing conditions on bail. The Petitioner being a journalist cannot be restricted from posting on social media as otherwise it would be amount to unjustified violation of freedom of speech and expression as well as freedom to practice his profession.

Based on the aforesaid grounds, the Supreme Court granted interim bail to the Petitioner subject to his filing a personal release bond in the amount of Rs 20,000/-. Further, to avoid overlapping of investigation in the FIRs and to ensure fair investigative process, the Apex Court directed transfer of the entirety of investigation to one investigating authority, i.e. the Special Cell of the Delhi Police. In respect of the relief of quashing of FIRs, the Supreme Court granted liberty to the Petitioner to approach the High Court of Delhi under Section 482 CrPC or Article 226 of the Constitution.

Harini Daliparthy

Senior Associate

The Indian Lawyer