Arnab Ranjan Goswami vs Union of India and Ors.

HELD: 1.1. The fundamental basis on which the jurisdiction of this Court has been invoked under Article 32 is the filing of multiple FIRs and complaints in various States arising from the same cause of action. All the FIRs or complaints which have been lodged in diverse jurisdictions arise out of one and the same incident - the broadcast by the petitioner on 21 April 2020 on R Bharat. The broadcast is the foundation of the allegation that offences have been committed under the provisions of Sections 153, 153A, 153B, 295A, 298, 500, 504 and 506 of the IPC. The several complaints are worded in identical terms and leave no manner of doubt that an identity of cause of action underlies the allegations leveled against the petitioner on the basis of the programme which was broadcast on 21 April 2020. Moreover, the language, content and sequencing of paragraphs and their numbering is identical. [Paras 28 and 31][252-C; 256A-C]

1.2 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 of views on television shows which he hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a). Country’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal. The exercise of that fundamental right is not absolute and is answerable to the legal regime enacted with reference to the provisions of Article 19(2). But to allow a journalist to be subjected to multiple complaints and to the pursuit of remedies traversing multiple States and jurisdictions when faced with successive FIRs and complaints bearing the same foundation has a stifling effect on the exercise of that freedom. This will effectively destroy the freedom of the citizen to know of the affairs of governance in the nation and the right of the journalist to ensure an informed society. The right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express. But as a society one must never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position. [Para 32][256-E-G; 257-A]

1.3 It is firmly established that any reasonable restriction on fundamental rights must comport with the proportionality standard, of which one component is that the measure adopted must be the least restrictive measure to effectively achieve the legitimate state aim. Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method of achieving the legitimate state aim in prosecuting crime. The manner in which the petitioner has been subjected to numerous FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views. In such a situation, to require the petitioner to approach the respective High Courts having jurisdiction for quashing would result into a multiplicity of proceedings and unnecessary harassment to the petitioner, who is a journalist. [Para 33][257-B-E]

1.4 However, the petitioner, in the exercise of his right under Article 19(1)(a), is not immune from an investigation into the FIR which has been transferred from Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai. This balance has to be drawn between the exercise of a fundamental right under Article 19(1)(a) and the investigation for an offence under the CrPC. All other FIRs in respect of the same incident constitute a clear abuse of process and must be quashed. Leaving open, however, the investigation in respect of the FIR 238 of 2020 dated 22 April 2020 transferred from the Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai. [Paras 31 and 34][256-D; 257-F-H]

TT Antony v State of Kerala (2001) 6 SCC 181 : [2001]

3 SCR 942; Upkar Singh v Ved Prakash (2004) 13 SCC 292; Ram Lal Narang v State (Delhi Administration) (1979) 2 SCC 322 : [1979] 2 SCR 923; Kari Choudhary v Mst. Sita Devi (2002) 1 SCC 714 : [2001] 5 Suppl. SCR 588; State of Bihar v JAC Saldanha (1980) 1 SCC

554 : [1980] 2 SCR 16; Babubhai v State of Gujarat (2010) 12 SCC 254 : [2010] 10 SCR 651 – relied on. Chirra Shivraj v State of Andhra Pradesh (2010) 14 SCC 444 : [2010] 15 SCR 673; Chirag M Pathak v Dollyben Kantilal Patel (2018) 1 SCC 330 : [2017] 14 SCR 424 – referred to.

2. Section 199 of the CrPC stipulates prosecution for defamation. In case of criminal defamation, neither can an FIR be filed nor can a direction be issued under Section 156 (3) of the CrPC and it is only a complaint which can be instituted by a person aggrieved. Therefore, the FIR which is under investigation at the NM Joshi Marg Police Station in Mumbai does not and cannot cover any alleged act of criminal defamation. [Paras 45, 46 and 47][206-E; 264-E; 265-D-E]

3.1 It would be inappropriate for the court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR 164 of 2020 under investigation at the NM Joshi Marg Police Station in Mumbai. The checks and balances to ensure the protection of the petitioner’s liberty are governed by the CrPC. Despite the liberty being granted by this Court to the petitioner on 24 April 2020 by its interim order, it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC. The petitioner has an equally efficacious remedy available before the High Court. [Para 49][266G-H; 267-A-B]

3.2 It should not be construed that a petition under Article

32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC and there is no exceptional grounds or reasons to entertain the petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like that in the present case, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, the petitioner must be relegated to avail of the remedies which are available under the CrPC before the competent court including the High Court. [Para 49][267-CD]

4.1 The transfer of an investigation to the CBI is not a matter of routine. This is an “extraordinary power” to be used “sparingly” and “in exceptional circumstances”. One factor that courts may consider is that such transfer is “imperative” to retain “public confidence in the impartial working of the State agencies.” However, mere allegations against the police do not constitute a sufficient basis to transfer the investigation. The accused “does not have a say in the matter of appointment of investigating agency”.[Paras 36 and 37][258-D; 259-G; 260-A-B] State of West Bengal v Committee for Protection of Democratic Rights, West Bengal (2010) 3 SCC 571 : [2010] 2 SCR 979 – followed.

K V Rajendran v Superintendent of Police, CBCID South Zone, Chennai (2013) 12 SCC 480 : [2013] 9 SCR 199; Romila Thapar v Union of India (2018) 10 SCC

753 : [2018] 11 SCR 951; Narmada Bai v State of Gujarat (2011) 5 SCC 79 : [2011] 5 SCR 729; Sanjiv Rajendra Bhatt v Union of India (2016) 1 SCC 1 : [2015] 12 SCR 498; E Sivakumar v Union of India (2018) 7 SCC 365 : [2018] 6 SCR 522; Divine Retreat Centre v State of Kerala (2008) 3 SCC 542 : [2008] 4 SCR 701 – relied on.

4.2 The petitioner had requested for and consented to the transfer of the investigation of the FIR from the Police Station Sadar, District Nagpur City to the NM Joshi Marg Police Station in Mumbai. He did so because an earlier FIR lodged by him at that police station was under investigation. The petitioner now seeks to pre-empt an investigation by the Mumbai police. The basis on which the petitioner seeks to achieve this is untenable. An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in regard to the investigating agency. The line of interrogation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under investigation/interrogation. So long as the investigation does not violate any provision of law, the investigation agency is vested with the discretion in directing the course of investigation, which includes determining the nature of the questions and the manner of interrogation. The investigating agency is entitled to decide “the venue, the timings and the questions and the manner of putting such questions” during the course of the investigation. Courts must refrain from passing comments on an ongoing investigation to extend to the investigating agencies the requisite liberty and protection in conducting a fair, transparent and just investigation. The length of the investigation or the nature of the questions addressed to the petitioner and the CFO during the interrogation cannot weigh in transferring the investigation. The investigating agency is entitled to determine the nature of the questions and the period of questioning. The Petitioner was summoned for investigation on one day. [Paras 39, 40 and 41][261-B-D; 261-G-H; 262-A-B; 262-E-F]

P. Chidambaram v Directorate of Enforcement (2019)

9 SCC 24 : [2019] 12 SCR 172; State of Bihar v P P Sharma (1992) Suppl. 1 SCC 222 : [1991] 2 SCR 1; Dukhishyam Benupani, Asst. Director, Enforcement Directorate (FERA) v Arun Kumar Bajoria (1998) 1 SCC

52 : [1997] 5 Suppl. SCR 566; Director, Central Bureau of Investigation v Niyamavedi represented by its Member K Nandini, Advocate (1995) 3 SCC 601 : [1995] 3 SCR

196 – relied on.

4.3 The allegation of the Petitioner that there is a conflict of interest arising out of the criticism by him of the alleged failure of the State Government to adequately probe the incident at Palghar is not valid. The investigation of the Palghar incident is beyond the territorial jurisdiction of the Mumbai police. The petitioner was interrogated on 27 April 2020. The allegations which he leveled against the Commissioner of Police, Mumbai were in the course of a television programme on 28 April 2020 relayed on R Bharat at 1900 hrs. No transfer of investigation can be ordered “merely because a party has levelled some allegations against the local police.” Accordingly, leveling such allegations would not by itself constitute a sufficient ground for the transfer of the investigation. [Paras 41 and 42][262-G; 263-A-C]

4.4 The interview given by the complainant to a representative of R Bharat does not furnish a valid basis in law for an inference that the investigation is tainted or as warranting a transfer of investigation to the CBI. The Government of Maharashtra has moved an application before this Court (affirmed by the DCP, Zone-3) seeking appropriate directions to insulate the investigating agency “from any pressure, threat or coercion from the petitioner” and to enable it to discharge its lawful duties in a fair and transparent manner. Based on the views tweeted by R Bharat on social media, it is the Maharashtra police which is now claiming a restraining order against the petitioner. The investigating agency has placed on the record what it believes is an attempt by the petitioner to discredit the investigation by taking recourse to the social media and by utilizing the news channels which he operates. Social media has become an overarching presence in society. To accept the tweets by the petitioner and the interview by the complainant as a justification to displace a lawfully constituted investigation agency of its jurisdiction and duty to investigate would have far-reaching consequences for the federal structure. [Para 43][263-C-G]

4.5 There is no reason that warrants a transfer of the investigation to the CBI. An individual under investigation has a legitimate expectation of a fair process which accords with law. The displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI. Courts assume the extraordinary jurisdiction to transfer an investigation in exceptional situations to ensure that the sanctity of the administration of criminal justice is preserved. While no inflexible guidelines are laid down, the notion that such a transfer is an “extraordinary power” to be used “sparingly” and “in exceptional circumstances” comports with the idea that routine transfers would belie not just public confidence in the normal course of law but also render meaningless the extraordinary situations that warrant the exercise of the power to transfer the investigation. Having balanced and considered the material on record as well as the averments of and submissions urged by the petitioner, no case of the nature which falls within the ambit of the tests enunciated in the precedents of this Court has been established for the transfer of the investigation. [Para 44][263-G-H; 264-AD]

Subramanian Swamy v Union of India, Ministry of Law (2016) 7 SCC 221 : [2016] 3 SCR 865 – relied on.

5. There is no reason to entertain the subsequent Writ Petition which has been filed by the petitioner in respect of the FIR lodged at Pydhonie Police Station (FIR 137 of 2020 dated 2 May 2020). The basis on which the jurisdiction of this Court was invoked in the first Writ Petition – the filing of multiple FIRs in various states – is absent in the subsequent Writ Petition (Crl.) Diary No 11189 of 2020. The petitioner would be at liberty to pursue his remedies under the law in respect of the FIR. Any recourse to such a remedy shall be considered on its own merits by the competent court. [Para 52][268-B-D]