1. Writ petition under Article 32 challenging arrest and incarceration for offences under Sections 500 and 505 of the Indian Penal Code and Section 67 of the Information Technology Act. (Para 1 )
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2019 Supreme(SC) 673
SUPREME COURT OF INDIA
INDIRA BANERJEE, AJAY RASTOGI, JJ.
JAGISHA ARORA – Petitioner(s)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. – Respondent(s)
Writ Petition(s)(Criminal) No(s). 164 of 2019 ([ TO BE TAKEN UP AT THE TOP OF THE LIST] IA No. 88069/2019 - EXEMPTION FROM FILING O.T. IA No. 88068/2019 - GRANT OF INTERIM RELIEF)
Decided On : 11-06-2019
IMPORTANT POINT
Fundamental rights guaranteed under Constitution of India and in particular Articles 19 and 21 of Constitution of India are non-negotiable.
Headnote:Constitution of India – Articles 32 and 142 read with Articles 19 and 21 – Right to freedom of speech and expression – Arrest and incarceration for for putting up offending posts/tweets on social media – Fundamental rights guaranteed under Constitution of India and in particular Articles 19 and 21 of Constitution of India are non-negotiable – As a matter of self-imposed discipline and considering pressure of mounting cases on this Court, it has become practice of this Court to ordinarily direct that High Court first be approached even in cases of violation of fundamental rights – However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in instant case – Court not inclined to sit back on technical grounds – In exercise of power under Article 142 of Constitution of India this Court can mould reliefs to do complete justice – Petitioner’s husband be immediately released on bail on conditions to satisfaction of jurisdictional Chief Judicial Magistrate – However, this Order is not to be construed as an approval of posts/tweets in social media – This order is passed in view of excessiveness of action taken – Proceedings will take their own course in accordance with law. (Paras 2, 5 to 8)
Facts of Case:
In this Writ Petition under Article 32 of Constitution of India, petitioner has challenged arrest and incarceration of her husband against whom proceedings have been initiated under Sections 500 and 505 of Indian Penal Code read with Section 67 of Information Technology Act.
Findings of Court:
As a matter of self-imposed discipline and considering pressure of mounting cases on this Court, it has become practice of this Court to ordinarily direct that High Court first be approached even in cases of violation of fundamental rights. We are not inclined to sit back on technical grounds. In exercise of power under Article 142 of the Constitution of India this Court can mould the reliefs to do complete justice.
Result : Writ Petition disposed of with directions.
Legal Category Hierarchy
- constitutional law
- crime and sentencing
- practice and procedure
Table of Contents
2. Maintainability of habeas corpus against a remand order and whether the petitioner should have approached the High Court before the Supreme Court. (Para 3 , 4 )
3. Fundamental rights under Articles 19 and 21 are non-negotiable; Article 32 cannot be rendered nugatory in cases of glaring deprivation of liberty. (Para 2 , 5 )
4. In glaring cases of deprivation of liberty, the Court may exercise power under Article 142 to mould relief and ensure fundamental rights are not rendered nugatory. (Para 5 , 6 )
5. Direction for immediate release on bail, while proceedings continue in accordance with law. (Para 7 , 8 )
6. Can a writ of habeas corpus be maintained when a person is in custody pursuant to a remand order?
While such orders are typically challenged under the Criminal Procedure Code, the Supreme Court may intervene under Article 32 in glaring cases of deprivation of liberty to ensure fundamental rights are not rendered nugatory. (Para 4 , 5 )
7. Does the practice of directing petitioners to the High Court first override the right to approach the Supreme Court under Article 32?
No. Although the Court ordinarily directs petitioners to the High Court to manage caseloads, Article 32 is a fundamental right that cannot be rendered nugatory in cases of excessive deprivation of liberty. (Para 5 )
8. What power does the Supreme Court have to provide relief despite technical objections regarding maintainability?
Under Article 142 of the Constitution of India, the Supreme Court can mould reliefs to do complete justice, allowing it to overlook technical grounds to protect fundamental liberties. (Para 6 )
ORDER
1. In this Writ Petition under Article 32 of the Constitution of India, the petitioner has challenged the arrest and incarceration of her husband – Prashant Kanojia against whom proceedings have been initiated under Sections 500 and 505 of the Indian Penal Code read with Section 67 of the Information Techonlogy Act. We need not comment on the nature of the posts/tweets for which the action has been taken. The question is whether the petitioner’s husband-Prashant Kanojia ought to have been deprived of his liberty for the offence alleged. The answer to that question is prima facie in the negative.
2. The fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.
3. The learned Additional Solicitor General appearing on behalf of the State has opposed this allegation on various technical grounds including the ground that there is an order of remand passed by the jurisdictional Magistrate. It is also contended that the High Court should have first be approached.
4. Citing the judgment of this Court in the State of Maharashtra and others versus Tasneem Rizwan Siddiquee reported in 2018 (9) SCC 745, the learned Additional Solicitor General argued that the question of whether a writ of habeas corpus could be maintained in respect of a person who was in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, had already been settled by this Court. This application, is, therefore not maintainable. It was argued that the order of remand ought to be challenged in accordance with the provisions of the Criminal Procedure Code. It was also argued that this Court does not ordinarily entertain writ petitions unless the High Court has first been approached.
5. As a matter of self imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media.
6. We are not inclined to sit back on technical grounds. In exercise of power under Article 142 of the Constitution of India this Court can mould the reliefs to do complete justice.
7. We direct that the petitioner’s husband be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate. It is made clear that this Order is not to be construed as an approval of the posts/tweets in the social media. This order is passed in view of the excessiveness of the action taken.
8. Needless to mention that the proceedings will take their own course in accordance with law.
9. The writ petition is disposed of accordingly.
10. Pending application(s) also stand disposed of.
