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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, SURYA KANT, A.S. BOPANNA, JJ.
Mohammed Zubair – Appellant
Versus
State of NCT of Delhi & Ors - Respondents
Writ Petition (Criminal) No 279 of 2022
Decided on : 20-07-2022
(A) Indian Penal Code 1860 – Sections 153-A, 295-A, 201 and 120-B – Constitution of India – Articles 21 and 32 – Allegation of hurting religious sentiments and other offences – Petitioner is embroiled in successive FIRs which have been registered in diverse Police Stations in State of Uttar Pradesh – Allegations against petitioner pertain to tweets which have been put out by him – Petitioner has been subjected to sustained investigation by Delhi Police and no reason for deprivation of liberty of petitioner to persist any further – Existence of power of arrest must be distinguished from exercise of power of arrest – Exercise of power of arrest must be pursued sparingly – Petitioner must be released on interim bail in each of FIRs – Fair investigative process would require that entirety of investigation in all FIRs should be consolidated and entrusted to one investigating authority – All FIRs should be transferred for investigation to Special Cell of Delhi Police and SIT which has been constituted by Uttar Pradesh Police shall be disbanded. (Paras 19, 20, 22, 23 and 31)
(B) Criminal Procedure Code, 1973 – Section 41(1)(b)(ii) – Power to arrest – Arrest is not meant to be and must not be used as a punitive tool because it results in loss of personal liberty – Individuals must not be punished solely on the basis of allegations and without a fair trial – Police officers have a duty to apply their mind to case before them and ensure that condition(s) in Section 41 are met before they conduct arrest – When power to arrest is exercised without application of mind and without due regard to law, it amounts to abuse of power – Criminal law and its processes ought not to be instrumentalized as a tool of harassment – Section 41 of Cr.P.C. as well as safeguards in criminal law exist in recognition of reality that any criminal proceeding almost inevitably involves might of State, with unlimited resources at its disposal, against a lone individual. (Paras 26, 27 and 28)
(C) Criminal Procedure Code, 1973 – Sections 437 and 438 – Grant of bail – Conditions – Merely because complaints filed against petitioner arise from posts that were made by him on a social media platform, blanket anticipatory order preventing him from tweeting cannot be made – A blanket order directing 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 – Gag orders have a chilling effect on freedom of speech – Passing an order restricting him from posting on social media would amount to unjustified violation of freedom of speech and expression and freedom to practice his profession – Courts while imposing bail conditions must balance liberty of accused and necessity of a fair trial. (Paras 29 and 30)
Facts of the case:
Petitioner is the co-founder of ALT News, a fact checking portal which conducts its activities under the auspices of Pravda Media Foundation. FIR was registered at the Special Cell of Delhi Police for alleged offences punishable under Sections 153-A, 295-A, 201 and 120-B of Indian Penal Code 1860. The offence under Section 35 of Foreign Contribution (Regulation) Act 20102 was added during the course of investigation. The petitioner was arrested on 27 June 2022 and was remanded to police custody for a day by the order of the Duty Magistrate. Custodial order was extended for a further period of four days by the Chief Metropolitan Magistrate, Patiala House Courts, Delhi. On 30 June 2022, a search took place at residential premises of the petitioner in Bangalore. The legality of the order of police remand has been challenged before the High Court of Delhi in which notice has been issued on 1 July 2022. On 2 July 2022, petitioner was remanded to fourteen days of judicial custody and his application for bail was rejected by the Chief Metropolitan Magistrate at Patiala House Courts, Delhi. On 15 July 2022, he was granted regular bail by the Additional Sessions Judge.
Findings of Court:
Petitioner would be at liberty to pursue his rights and remedies in proceedings under Article 226 of the Constitution / Section 482 of Cr.P.C. before the High Court of Delhi in respect of FIRs which have been or which may be registered against him, and in that event, nothing contained in this judgment shall amount to an expression of opinion on merits of such proceedings.
Result : Petition allowed in part with directions.
Key Points: - The judgment distinguishes between existence of power of arrest and its exercise, urging sparing use of arrest. (!) - Emphasizes that arrest must be justified and not used as punitive tool; safeguards under CrPC 41 must guide enforcement. (!) - Holds that blanket gag orders restricting speech on bail are inappropriate; bail conditions must balance liberty and fair trial. (!) - Finds that gag-like restrictions on social media can violate freedom of speech and profession; such conditions require careful, proportional design. (!) - Orders transfer of investigations from Uttar Pradesh SIT to Delhi Police Special Cell for consolidated inquiry; UP SIT disbanded. (!) (!) (!) - Recognizes the need for consolidated investigation due to overlapping FIRs arising from same tweets; directs Article 32 remedy and further High Court avenues. (!) (!) - Grants interim bail and personal bond requirements to the petitioner across identified FIRs; limits on continued custody. (!) (!) (!) - Affirms that continued multi-jurisdictional proceedings without consolidation amount to harassment and fragmentation of liberty. (!) (!) - Encourages safeguarding journalists' rights and preventing weaponization of criminal law against speech. (!)
JUDGMENT :
Dhananjaya Y. Chandrachud, J
1. The petitioner is the co-founder of ALT News, a fact checking portal which conducts its activities under the auspices of Pravda Media Foundation. ALT News was launched in February 2017. Pravda Media Foundation is a company registered under Section 8 of the Companies Act 2013.
2. On 20 June 2022, FIR 172 of 2022 was registered at the Special Cell of the Delhi Police for alleged offences punishable under Sections 153-A, 295-A, 201 and 120-B of the Indian Penal Code 18601[“IPC”]. The offence under Section 35 of the Foreign Contribution (Regulation) Act 20102[“FCRA”] was added during the course of investigation. The petitioner was arrested on 27 June 2022 and was remanded to police custody for a day by the order of the Duty Magistrate. The custodial order was extended for a further period of four days by the Chief Metropolitan Magistrate, Patiala House Courts, Delhi. On 30 June 2022, a search took place at the residential premises of the petitioner in Bangalore. The legality of the order of police remand has been challenged before the High Court of Delhi in which notice has been issued on 1 July 2022. On 2 July 2022, the petitioner was remanded to fourteen days of judicial custody and his application for bail was rejected by the Chief Metropolitan Magistrate at Patiala House Courts, Delhi. On 15 July 2022, he was granted regular bail by the Additional Sessions Judge.
3. The Delhi Police have submitted a status report on 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, Khairabad, Sitapur, Uttar Pradesh.
(ii) Tweet 2:- Sanjay Showing facebook live video of Kurukshetra war of Mahabharat to Dhritrastra: Biplab Deb.
(iii) Tweet 3:- 'Bajrang Bali' ki aarti kama shuru karo, 'hanuman chalisa' ka path karo, bandar kabhi nuksaan nahin pahuchayega.
(iv) Tweet 4:- Ancient laptops had no processors & RAM. It was later copied by Missionary Mathematician Charles Babage. Sanskrit learning was essential for computer literacy those days. Only Virat Hindus could operate computer as lower castes were never allowed to learn Sanskrit.
(v) Tweet 5:- Equality to all is Real Ram Rajya. Be it Donkey.
(vi) Tweet 6:- We Vishnu A Merry Krishna "POSTCARD NEWS" Christianity is Krishna Neeti and Vatican City was called as Vatika!!!!Subhash Chandra Bose's assistant. The said tweet is present on the twitter account of Mohammed Zubair and posted on 25 Dec, 2017 at 1:20PM (1 PP)
(vii) Tweet 7 :- A tweet was posted by him on 30 Oct, 2021 at 3:03 PM in which two photos one of Vatican City and one of Shiva Lingam were shown and comparison between them are made. And he wrote This reminds me of @shanknaad post on Vatika-Vatican City. The said tweet is present on the twitter account of Mohammed Zubair.”
5. Apart from the above FIR which has been registered at the Special Cell in Delhi, a series of FIRs have been registered ag
The court held that the intent behind tweets must be assessed carefully, and freedom of speech is subject to reasonable restrictions to maintain public order and national integrity.
Writ petition for transfer of investigation and quashing of FIRs dismissed as registration is mandated by law; prior protection does not prevent new FIRs.
Point of Law : High Court should not foreclose itself from the exercise of powers when a citizen has been arbitrarily deprived of personal liberty in the exercise of State powers, apart from other pa....
It cannot be said that the assertions made in the FIR are unbelievable. In the given facts and circumstances on the record, and in view of the submissions made at the Bar.
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