Mohammed Zubair vs State of NCT of Delhi & Ors.

Criminal Law – Power of arrest vis-à-vis exercise of the power of arrest – Code of Criminal Procedure, 1973 – s.41(1)(b)(ii) – Held: 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 – Police officers are vested with the power to arrest individuals at various stages of the criminal justice process – However, this power is not unbridled – In terms of s.41(1)(b)(ii), the police officer in question must be satisfied that such arrest is necessary – Police officers have a duty to apply their mind to the case before them and ensure that the condition(s) in s.41 are met before they conduct an arrest – Guidelines laid down in Arnesh Kumar must be followed, without exception. Code of Criminal Procedure, 1973 – ss.437, 438 – Bail conditions – Held: 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.

Partly allowing the Writ petition, the Court

HELD: 1.1 It is evident from the record that the investigation which has been conducted by the Special Cell of the Delhi Police is comprehensive in nature and extends across the gamut of tweets put out by the petitioner. The petitioner was granted regular bail in the proceedings arising out of FIR No 172/2022 by an order dated 15 July 2022 of the Additional Sessions Judge at the Patiala House Courts. In the proceedings which reached this Court arising out of FIR No 226/2022 registered at PS Khairabad in the District of Sitapur, the petitioner was granted interim bail on 8 July 2022. The order granting interim bail has been extended pending further orders on 12 July 2022. The grant of bail, first by this Court on 12 July 2022 and next by the Patiala House Courts on 15 July 2022, however, has not been sufficient to secure the personal liberty of the petitioner. The petitioner is still embroiled in successive FIRs which have been registered in diverse Police Stations in the State of Uttar Pradesh where he is in judicial custody and applications for the grant of bail are pending. The prosecution seeks orders for police remand. [Para 17-19][507-G-H; 508-A-C]

1.2 Essentially, the allegations against the petitioner pertain to the tweets which have been put out by him. The three notices issued by Police Stations at Hathras Kotwali, Sikandra Rao, and Khairabad under Section 91 CrPC are verbatim the same. Having found from the record that the petitioner has been subjected to a sustained investigation by the Delhi Police, there is no reason or justification for the deprivation of the liberty of the petitioner to persist any further. Consequently, the petitioner must be released on interim bail in each of the FIRs which forms the subject matter of these proceedings, 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. Further, this Court reiterated the role of courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment. [Para 20, 21][508-C-F; 509-E]

Arnab Ranjan Goswami v. Union of India (2020) 14 SCC 12 – relied on.

1.3 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 CrPC. 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 overlap in the FIRs, emanating as they do from the tweets of the petitioner, only goes to emphasize the need for a consolidated, as opposed to piece-meal investigation by a diverse set of law enforcement agencies. The alternate prayer which has been adduced on behalf of the petitioner should be accepted, as a consequence of which all the FIRs which have been registered against the petitioner including the FIRs arising out of the Petitioner’s tweets should be transferred for investigation to the Special Cell of the Delhi Police. As a consequence of the direction, the SIT which has been constituted by the Uttar Pradesh Police shall be rendered redundant and shall be disbanded. While this Court has not proceeded to quash the FIRs as sought in prayer (a), it is expressly clarified that the petitioner has been granted the liberty to move the High Court of Delhi in proceedings under Section

482 CrPC, in the event that he is advised to seek the quashing of the FIRs before the High Court of Delhi. All proceedings in connection with the FIRs shall lie before the High Court of Delhi for such remedies as are available in law. The direction for the transfer of the investigation of the FIRs which have been registered in Uttar Pradesh to the Special Cell of the Delhi Police shall apply to all the existing FIRs forming the subject matter of the tweets which have been put out by the petitioner and to any future FIRs which may be registered against him on the same subject matter. It is also ordered and directed that the petitioner shall be entitled to the protective order of interim bail which has been granted by this Court not only in respect of the FIRs which have already been registered, but also in respect of the FIRs which will hereafter be registered on the same subject matter in regard to the tweets which have been put out by him. The machinery of criminal justice has been relentlessly employed against the petitioner. Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned, the petitioner was subjected to multiple investigations across the country. Consequently, he would be required to hire multiple advocates across districts, file multiple applications for bail, travel to multiple districts 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. [Para 22-25][510-C-H; 511-AE]

1.4 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 CrPC, 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. Police officers have a duty to apply their mind to the case before them and ensure that the condition(s) in Section 41 are met before they conduct an arrest. This Court has time and again, reiterated the importance of doing so. It is once again reiterated that the guidelines laid down in Arnesh Kumar must be followed, without exception. The raison d’être 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 CrPC 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. Section 438(2) stipulates that the High Court or the Court of Sessions can direct a person to be released on conditional bail. The provision provides that the Court shall impose conditions in the context of the facts of a particular case. The list of illustrative bail conditions stipulated in Sections 437 and 438 relate to the need to ensure a proper investigation and fair trial or to prevent the accused from committing an offence similar to the one he is suspected of, or in the interest of justice. 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. 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. [Para 26-29][511-F-H; 512-C-G; 513-A-B]

Arnesh Kumar v.State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR 128; Parvez Noordin Lokhandwalla v. State of Maharashtra (2020) 10 SCC 77 – relied on.

1.5 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 rightfully entitled to hold as an active participating citizen - would be disproportionate to the purpose of imposing conditions on bail. The imposition of such a condition would tantamount to a gag order against the petitioner. Gag orders have a chilling effect on the freedom of speech. According to the petitioner, he is a journalist who is the co-founder of a fact checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos. Passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession. The petition is allowed in part in terms of the directions issued. [Para 30, 31][513-E-G; 514-A-B] Kunal Kumar Tiwari v. The State of Bihar, (2018) 16 SCC 74; Dataram Singh v. State of Uttar Pradesh, (2013) 15 SCC 570; Sumit Singh v. State (NCT of Delhi) (2013) 15 SCC 570 : [2013] 10 SCR 125 – referred to.