MOHAMMED ZUBAIR versus STATE OF NCT OF DELHI & ORS on 20 July 2022

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SUPREME COURT REPORTS

[2022] 18 S.C.R.

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MOHAMMED ZUBAIR

v.

STATE OF NCT OF DELHI & ORS.

(Writ Petition (Criminal) No. 279 of 2022)

BJULY 20, 2022

[DR. DHANANJAYA Y CHANDRACHUD, SURYA KANTAND A. S. BOPANNA, JJ.]

Criminal Law – Multiplicity of proceedings – Penal Code,1860 – ss.153-A, 295-A, 201, 120-B – Code of Criminal Procedure,C1973 – ss.437, 438, 482 – Constitution of India – Arts. 32, 226 –Foreign Contribution (Regulation) Act, 2010 – s.35 – FIR No.172of 2022 was registered against Petitioner, co-founder of ALT News,a fact checking portal, at Special Cell of Delhi Police for allegedoffences punishable u/ss.153-A, 295-A, 2 201 and 120-B, IPC –DOffence u/s.35, FCRA added during course of investigation –Successive FIRs registered in diverse Police Stations in the State ofUttar Pradesh – Present petition filed for quashing of the five FIRsand in the alternative for the clubbing of the said FIRs alongwithFIR No. 226/2022 registered at PS Khairabad, Distt. Sitapur withFIR No. 172/2022– Held: Essentially, the allegations against theEpetitioner pertain to the tweets put out by him – Petitioner wasgranted regular bail in the proceedings arising out of FIR 172/2022 – Also, in the proceedings which had reached Supreme Courtarising out of FIR No 226/2022, the petitioner was granted interimbail which was extended pending further orders – However, theFpetitioner is still embroiled in successive FIRs registered in diversePolice Stations in the State of Uttar Pradesh where he is in judicialcustody and applications for the grant of bail are pending – Despitethe fact that the same tweets allegedly gave rise to similar offencesin the diverse FIRs, the petitioner was subjected to multipleinvestigations across the country – Machinery of criminal justiceGhas been relentlessly employed against him – Further, merely becausethe complaints filed against the petitioner arise from posts made byhim on a social media platform, a blanket anticipatory orderpreventing him from tweeting cannot be made – Such blanket orderwould be disproportionate to the purpose of imposing conditionsHon bail and would tantamount to a gag order – Gag orders have a chilling effect on the freedom of speech – Petitioner enlarged oninterim bail in connection with the FIRs set out in paragraph (i) –Investigation into the said FIRs stands transferred from the UttarPradesh Police to the Special Cell of Delhi Police – SIT constitutedby the DGP, Uttar Pradesh stand disbanded – Aforesaid directionsstand extended to any other FIR which may be registered againstthe petitioner hereafter in respect of the same subject matter as thesaid FIRs – Further, proceedings in respect of Crime No.199 of2021 registered at PS Charthawal, Muzaffarnagar transferred tothe Chief Judicial Magistrate, Patiala House Courts – Orderenlarging the petitioner on bail to remain in force – While, FIRs arenot being quashed as prayed, but the Petitioner is at liberty to pursuehis rights and remedies in proceedings u/Art. 226/s.482, CrPC beforethe High Court of Delhi in respect of the FIRs which have been orwhich may be registered against him.

Criminal Law – Power of arrest vis-à-vis exercise of the powerof arrest – Code of Criminal Procedure, 1973 – s.41(1)(b)(ii) –Held: The existence of the power of arrest must be distinguishedfrom the exercise of the power of arrest – The exercise of the powerof arrest must be pursued sparingly – Police officers are vestedwith the power to arrest individuals at various stages of the criminaljustice process – However, this power is not unbridled – In terms ofs.41(1)(b)(ii), the police officer in question must be satisfied thatsuch arrest is necessary – Police officers have a duty to apply theirmind to the case before them and ensure that the condition(s) ins.41 are met before they conduct an arrest – Guidelines laid downin Arnesh Kumar must be followed, without exception.

Conclusion

Code of Criminal Procedure, 1973 – ss.437, 438 – Bailconditions – Held: Bail conditions imposed by the Court must notonly have a nexus to the purpose that they seek to serve but mustalso 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 theinvestigation which has been conducted by the Special Cell ofthe Delhi Police is comprehensive in nature and extends acrossthe gamut of tweets put out by the petitioner. The petitioner wasgranted regular bail in the proceedings arising out of FIR No172/2022 by an order dated 15 July 2022 of the Additional AB

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ASessions Judge at the Patiala House Courts. In the proceedingswhich reached this Court arising out of FIR No 226/2022registered at PS Khairabad in the District of Sitapur, the petitionerwas granted interim bail on 8 July 2022. The order grantinginterim bail has been extended pending further orders on 12 July2022. The grant of bail, first by this Court on 12 July 2022 andBnext by the Patiala House Courts on 15 July 2022, however, hasnot been sufficient to secure the personal liberty of the petitioner.The petitioner is still embroiled in successive FIRs which havebeen registered in diverse Police Stations in the State of UttarPradesh where he is in judicial custody and applications for theCgrant of bail are pending. The prosecution seeks orders for policeremand. [Para 17-19][507-G-H; 508-A-C]

1.2 Essentially, the allegations against the petitioner pertainto the tweets which have been put out by him. The three noticesissued by Police Stations at Hathras Kotwali, Sikandra Rao, andDKhairabad under Section 91 CrPC are verbatim the same. Havingfound from the record that the petitioner has been subjected to asustained investigation by the Delhi Police, there is no reason orjustification for the deprivation of the liberty of the petitioner topersist any further. Consequently, the petitioner must be releasedon interim bail in each of the FIRs which forms the subject matter Eof these proceedings, under Article 32 of the Constitution. Theexistence of the power of arrest must be distinguished from theexercise of the power of arrest. The exercise of the power ofarrest must be pursued sparingly. In the present case, there isabsolutely no justification to keep the petitioner in continuedFcustody any further and to subject him to an endless round ofproceedings before diverse courts when the gravamen of theallegations in each of the said FIRs arises out of the tweets whichhave been put out by the petitioner, and which also form thesubject matter of the investigation being conducted by the DelhiPolice in FIR 172/2022. Further, this Court reiterated the role ofGcourts in protecting personal liberty and ensuring thatinvestigations are not used as a tool of harassment. [Para 20,21][508-C-F; 509-E]

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

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

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1.3 As regards the prayer for quashing of the FIRs, anessential aspect of the matter which must be noticed at this stageis that the investigation by the Special Cell of the Delhi Police inFIR No 172/2022 pertains to offences of a cognate nature to thosewhich have been invoked in the FIRs which have been lodgedbefore the Police Stations in Uttar Pradesh. Before this court canembark on an enquiry as to whether the FIRs should be quashed,it is appropriate that the petitioner pursues his remedies inaccordance with the provisions of Article 226 of the Constitutionand/or section 482 of the CrPC. However, a fair investigativeprocess would require that the entirety of the investigation in allthe FIRs should be consolidated and entrusted to oneinvestigating authority. The overlap in the FIRs, emanating asthey do from the tweets of the petitioner, only goes to emphasizethe need for a consolidated, as opposed to piece-mealinvestigation by a diverse set of law enforcement agencies. Thealternate prayer which has been adduced on behalf of thepetitioner should be accepted, as a consequence of which all theFIRs which have been registered against the petitioner includingthe FIRs arising out of the Petitioner’s tweets should betransferred for investigation to the Special Cell of the DelhiPolice. As a consequence of the direction, the SIT which has beenconstituted by the Uttar Pradesh Police shall be renderedredundant and shall be disbanded. While this Court has notproceeded to quash the FIRs as sought in prayer (a), it isexpressly clarified that the petitioner has been granted the libertyto move the High Court of Delhi in proceedings under Section482 CrPC, in the event that he is advised to seek the quashing ofthe FIRs before the High Court of Delhi. All proceedings inconnection with the FIRs shall lie before the High Court of Delhifor such remedies as are available in law. The direction for thetransfer of the investigation of the FIRs which have beenregistered in Uttar Pradesh to the Special Cell of the Delhi Policeshall apply to all the existing FIRs forming the subject matter ofthe tweets which have been put out by the petitioner and to anyfuture FIRs which may be registered against him on the samesubject matter. It is also ordered and directed that the petitionershall be entitled to the protective order of interim bail which hasbeen granted by this Court not only in respect of the FIRs which ABC

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Ahave already been registered, but also in respect of the FIRswhich will hereafter be registered on the same subject matter inregard to the tweets which have been put out by him. Themachinery of criminal justice has been relentlessly employedagainst the petitioner. Despite the fact that the same tweetsallegedly gave rise to similar offences in the diverse FIRsBmentioned, the petitioner was subjected to multiple investigationsacross the country. Consequently, he would be required to hiremultiple advocates across districts, file multiple applications forbail, travel to multiple districts spanning two states for thepurposes of investigation, and defend himself before multipleCcourts, all with respect to substantially the same alleged cause ofaction. Resultantly, he is trapped in a vicious cycle of the criminalprocess where the process has itself become the punishment. Italso appears that certain dormant FIRs from 2021 were activatedas certain new FIRs were registered, thereby compounding thedifficulties faced by the petitioner. [Para 22-25][510-C-H; 511-A-DE]

1.4 Police officers are vested with the power to arrestindividuals at various stages of the criminal justice process,including during the course of investigation. However, this poweris not unbridled. In terms of Section 41(1)(b)(ii) of the CrPC, theEpolice officer in question must be satisfied that such arrest isnecessary to prevent the person sought to be arrested fromcommitting any further offence, for proper investigation of theoffence, to prevent the arrestee from tampering with ordestroying evidence, to prevent them from influencing orFintimidating potential witnesses, or when it is not possible toensure their presence in court without arresting them. Policeofficers have a duty to apply their mind to the case before themand ensure that the condition(s) in Section 41 are met beforethey conduct an arrest. This Court has time and again, reiterated the importance of doing so. It is once again reiterated that theGguidelines laid down in Arnesh Kumar must be followed, withoutexception. The raison d’être of the powers of arrest in relationto cognizable offences is laid down in Section 41. Arrest is notmeant to be and must not be used as a punitive tool because itresults in one of the gravest possible consequences emanatingHfrom criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without afair trial. When the power to arrest is exercised without applicationof mind and without due regard to the law, it amounts to an abuseof power. The criminal law and its processes ought not to beinstrumentalized as a tool of harassment. Section 41 of the CrPCas well as the safeguards in criminal law exist in recognition ofthe reality that any criminal proceeding almost inevitably involvesthe might of the state, with unlimited resources at its disposal,against a lone individual. Section 438(2) stipulates that the HighCourt or the Court of Sessions can direct a person to be releasedon conditional bail. The provision provides that the Court shallimpose conditions in the context of the facts of a particular case.The list of illustrative bail conditions stipulated in Sections 437and 438 relate to the need to ensure a proper investigation andfair trial or to prevent the accused from committing an offencesimilar to the one he is suspected of, or in the interest of justice.The phrase ‘interest of justice’ has been interpreted in priorjudgments of this Court where it has been held that the discretionof the Court in imposing conditions on bail must be exercisedjudiciously and to advance a fair trial. The bail conditions imposedby the Court must not only have a nexus to the purpose that theyseek to serve but must also be proportional to the purpose ofimposing them. The courts while imposing bail conditions mustbalance the liberty of the accused and the necessity of a fair trial.While doing so, conditions that would result in the deprivation ofrights 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 thepetitioner arise from posts that were made by him on a socialmedia platform, a blanket anticipatory order preventing him fromtweeting cannot be made. A blanket order directing the petitionerto not express his opinion - an opinion that he is rightfully entitledto hold as an active participating citizen - would bedisproportionate to the purpose of imposing conditions on bail.

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AThe imposition of such a condition would tantamount to a gagorder against the petitioner. Gag orders have a chilling effect onthe freedom of speech. According to the petitioner, he is ajournalist who is the co-founder of a fact checking website and heuses Twitter as a medium of communication to dispel false newsand misinformation in this age of morphed images, clickbait, andBtailored videos. Passing an order restricting him from posting onsocial media would amount to an unjustified violation of thefreedom of speech and expression, and the freedom to practicehis profession. The petition is allowed in part in terms of thedirections issued. [Para 30, 31][513-E-G; 514-A-B]CKunal Kumar Tiwari v. The State of Bihar, (2018) 16 SCC74; Dataram Singh v. State of Uttar Pradesh, (2013) 15SCC 570; Sumit Singh v. State (NCT of Delhi) (2013) 15

SCC 570 : [2013] 10 SCR 125 – referred to.

Case Law Reference

CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 279 of 2022.

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

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Ms. Vrinda Grover, Soutik Banerjee, Ms. Devika Tulsiani, MannatTipnis, Aakarsh Kamra, Advs. for the Petitioner.

Ms. Garima Prashad, AAG, Adarsh Upadhyay, Harsh Mishra,Aman Pathak, Advs. for the Respondent.

The Judgment of the Court was delivered byG

DR. DHANANJAYA Y CHANDRACHUD, J.

1. The petitioner is the co-founder of ALT News, a fact checkingportal which conducts its activities under the auspices of Pravda MediaFoundation. ALT News was launched in February 2017. Pravda MediaFoundation is a company registered under Section 8 of the CompaniesHAct 2013.

2. On 20 June 2022, FIR 172 of 2022 was registered at the SpecialCell of the Delhi Police for alleged offences punishable under Sections153-A, 295-A, 201 and 120-B of the Indian Penal Code 1860[1]. Theoffence under Section 35 of the Foreign Contribution (Regulation) Act2010[2] was added during the course of investigation. The petitioner wasarrested on 27 June 2022 and was remanded to police custody for a dayby the order of the Duty Magistrate. The custodial order was extendedfor a further period of four days by the Chief Metropolitan Magistrate,Patiala House Courts, Delhi. On 30 June 2022, a search took place atthe residential premises of the petitioner in Bangalore. The legality ofthe order of police remand has been challenged before the High Courtof 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 hisapplication for bail was rejected by the Chief Metropolitan Magistrate atPatiala House Courts, Delhi. On 15 July 2022, he was granted regularbail by the Additional Sessions Judge.

3. The Delhi Police have submitted a status report on the courseof the investigation, which has been carried out in pursuance of FIR No172 of 2022, before the Additional Sessions Judge. The status reportnotes the course of the investigation which spans into tweets alleged tohave been put out by the petitioner. According to the status report, “forthe purpose of recovery of the laptop and mobile phone used incommitting this crime and for the purpose of interrogation of theaccused to find out other tweets/posts and larger part of theconspiracy, 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 togain popularity he posts such contents/post that triggers religioussentiment and he remain trending in news/ social media and he canget recovered the laptop and mobile phone used in committing thiscrime”.

4. The status report has also adverted to seven tweets put out bythe petitioner on the basis of which the Police at the Special Cell iscontinuing its investigation. The extract from the status report submittedby the Delhi Police in regard to the above tweets reads as follows:

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(i) Tweet 1:-against Mahant Bajrang Muni Ji of RashtriyaHindu Sher Sena, Khairabad, Sitapur, Uttar Pradesh.

(ii) Tweet 2:- Sanjay Showing facebook live video ofKurukshetra war of Mahabharat to Dhritrastra: Biplab Deb.B

(iii) Tweet 3:- ‘Bajrang Bali’ ki aarti kama shuru karo, ‘hanumanchalisa’ ka path karo, bandar kabhi nuksaan nahinpahuchayega.

(iv) Tweet 4:- Ancient laptops had no processors & RAM. Itwas later copied by Missionary Mathematician CharlesCBabage. Sanskrit learning was essential for computerliteracy those days. Only Virat Hindus could operatecomputer as lower castes were never allowed to learnSanskrit.

(v) Tweet 5:- Equality to all is Real Ram Rajya. Be it Donkey.D

(vi) Tweet 6:- We Vishnu A Merry Krishna “POSTCARDNEWS” Christianity is Krishna Neeti and Vatican City wascalled as Vatika!!!!Subhash Chandra Bose’s assistant. Thesaid tweet is present on the twitter account of MohammedZubair and posted on 25 Dec, 2017 at 1:20PM (1 PP)E

(vii) Tweet 7 :- A tweet was posted by him on 30 Oct, 2021 at3:03 PM in which two photos one of Vatican City and oneof Shiva Lingam were shown and comparison between themare made. And he wrote This reminds me of @shanknaadpost on Vatika-Vatican City. The said tweet is present onFthe twitter account of Mohammed Zubair.”5. Apart from the above FIR which has been registered at theSpecial Cell in Delhi, a series of FIRs have been registered against thepetitioner, both before and after the FIR before the Special Cell. TheseFIRs are:

G(i)FIR No 502/2021 dated 15 June 2021 registered at PS LoniBorder, District Ghaziabad for offences punishable underSections 153, 153-A, 295-A, 505, 120-B and 34 of IPC;

(ii) FIR No 199/2021 dated 24 July 2021 registered at PSCharthawal, Muzaffarnagar for offences punishable underHSections 192, 504 and 506 of IPC;

(iii) FIR No 193/2021 dated 27 August 2021 registered at PSAChandauli for offences punishable under Section 67 of theInformation Technology Act 2000[3];

(iv) FIR No 511/2021, dated 18 September 2021 registered atPS Mohamadi District Lakhimpur for offences punishableunder Sections 153-A, 153B/505(1)B and 505(2) of IPC;B

(v) FIR No 226/2022 dated 1 June 2022 registered at PSKhairabad, District Sitapur for offences punishable underSection 295-A of IPC and Section 67 of the IT Act;

(vi) FIR No 286/2022 dated 10 June 2022 registered at PSCSikandrarao, Hathras for offences punishable under Sections147, 149, 153A, 353, 188, 120-B of IPC and under Section7 of the Criminal Law Amendment Act 1932[4]; and

(vii) FIR No 237/2022 dated 4 July 2022 registered at PS HathrasKotwali for offences punishable under Sections 153-A, 295-DA, 298 of IPC and section 67 of the IT Act.

6. The status of the FIRs is indicated below:

(i) In FIR No 199/2021 registered at Police Station Charthawal,the petitioner was granted bail on 30 July 2021 by the JudicialMagistrate; E

(ii) In FIR No 511/2021 registered at Police Station Mohamadi,the petitioner was remanded on 11 July 2022 to fourteendays of judicial custody. An application seeking policecustody was listed for submissions on 20 July 2022; F

(iii) In FIR No 226/2022 at Police Station Khairabad, thepetitioner was remanded to judicial custody for 14 days bythe JMFC-I, Sitapur on 4 July 2022 and to police custodybetween the period from 8 July 2022 until 14 July 2022. Byan order of this Court dated 8 July 2022, the petitioner wasgranted interim bail in Special Leave Petition (Crl) No 6138of 2022. The order of interim bail was extended on 12 July2022 pending further orders; and G

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A(iv)In FIR No 237/2022 registered at Police Station HathrasKotwali, the petitioner has been remanded to fourteen daysof judicial custody on 13 July 2022. On 15 July 2022, anapplication seeking fourteen days of police custody wasfiled.

B7. In the meantime, arising out of the FIRs which have beenregistered at diverse Police Stations in the State of Uttar Pradesh, thepetitioner as well as the Director of ALT News / Pravda Media Foundation(and the company) were served with notices under Section 41A of theCode of Criminal Procedure 1973[5] or, as the case may be, under Section91 of CrPC for the production of documents such as: (i) the balanceCsheet of the last three years; (ii) the income tax returns of the Directorand co-founders; (iii) details with regard to the payment of corporate taxby ALT News / Pravda Media Foundation; (iv) PAN cards of ALTNews / Pravda Media Foundation; (v) bank statements of ALT News /Pravda Media Foundation for the last three years; (vi) details of donationsDreceived since the inception of the ALT News website; and (vii) anundertaking in regard to the source of funds.

8. These proceedings invoke the jurisdiction under Article 32 ofthe Constitution of India. The relief which has been sought primarily isfor the quashing of the following FIRs, namely:

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“a)F.I.R no. 502/2021, dt. 15.06.2021, PS Loni Border, districtGhaziabad u/s 153, 153-A, 295-A, 505, 120-B and 34 of theIndian Penal Code, 1860.

b)Case Crime No. 199/2021, dt. 24.07.2021,PS Charthawal,Muzaffamagar u/Sec 192, 504, 5061PC.

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c)FIR no. 511/2021, dt. 18.09.2021, PS Mohamadi districtLakhimpur, u/Sec 153-A, 153B/505(1)8 and 505(2) IPC.

d)FIR no. 237/2022, dt. 04.07.2022, PS Hathras Kotwali on acomplaint dt. 14.06.2022 u/Sec 153-A, 295-A, 298 IPC andsection 67 of the IT Act.

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e)Case Crime no. 286/2022 dt. 10.06.2022, Hathras, PSSikandrarao, u/s 147, 149, 153A, 353, 188, 120-B of theIndian Penal Code, 1860 and u/s 7 of the CLA Act;”

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In the alternative, the petitioner seeks a direction that the aboveFIRs along with FIR No. 226/2022, PS Khairabad, Sitapur should beclubbed with FIR No 172/2022 which is under investigation by the SpecialCell of Delhi Police.

9. Office Memorandum No. DG-8-94-(30) of 2022[6] has beenissued on 10 July 2022, in terms of which a Special Investigation Team[7]has been constituted by the Director General of Police, Uttar Pradeshfor investigating the six FIRs which have been registered against thepetitioner in Uttar Pradesh.

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10. Apart from the prayer for quashing the FIRs or, in thealternative, for clubbing the investigation of the six FIRs mentioned inthe OM with the FIR which is pending investigation before the SpecialCell in Delhi, the petitioner seeks interim release on bail in all the FIRs,which are set out above, and a protective order of this Court directingthat no coercive steps be taken with respect to FIR 193 of 2021, PSChandauli.

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11. The petition was mentioned before this Court for urgent orderson 18 July 2022 with the permission of the Hon’ble Chief Justice ofIndia. While entertaining the petition on 18 July 2022, this Court directedthat no precipitate steps shall be taken against the petitioner on the basisof the five FIRs which form the subject matter of these proceedings.Notice was issued by this Court on 18 July 2022.

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12. We have heard Ms Vrinda Grover, senior counsel appearingon behalf of the petitioner and Ms Garima Prashad, senior counsel andAdditional Advocate General appearing on behalf of the State of UttarPradesh.

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13. Appearing on behalf of the petitioner, Ms Vrinda Groversubmitted that:

(i) The tweets which have been put out by the petitioner arethe subject matter of the FIRs which have been registeredin Delhi and in Police Stations within different districts inGthe State of Uttar Pradesh;

(ii) All the FIRs, broadly speaking, implicate alleged offencespunishable under the same provisions, namely, Sections 6 “OM”

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506SUPREME COURT REPORTS

A153A, 295A, 298 and 505 of IPC and Section 67 of the ITAct;

(iii) In the FIR which has been registered at the Special Cellin Delhi, the petitioner was subjected to an order of remand,following which eventually he has been granted regularBbail by the Additional Sessions Judge at the Patiala HouseCourts. The status report which has been submitted bythe Delhi Police before the Additional Sessions Judge wouldindicate that the scope of the investigation has beenwidened so as to also include the provisions of the FCRA;andC

(iv) Broadly speaking, the tweets which have been adverted toin the status report submitted by the Delhi Police beforethe Additional Sessions Judge also form the subject matterof the FIRs which have been registered in the diverse PoliceStations in the State of Uttar Pradesh.D

14. On the above premises, counsel submitted that:

(i) In none of the tweets has the petitioner even remotely usedany language which is improper or which would amount toan offence with reference to which the provisions of theEcriminal law could be invoked;

(ii) On the contrary, in several of the tweets, the petitioner hadtagged the Uttar Pradesh Police and had invited action bythe law enforcement machinery consequent on speechesmade by other persons which were found to beFobjectionable;

(iii) The gravamen of all the FIRs which have been registeredagainst the petitioner essentially remains the same, arisingout of the tweets by the petitioner; G(iv)The instrument of criminal law has been used to harassand silence the voice of the petitioner which would beapparent from the manner in which the petitioner has beenmade to face successive proceedings arising out of theFIRs which have been lodged in the State of Uttar Pradesh;and H

(v) The petitioner has a real and genuine apprehension in regardAto the safety and security of his life following the publicationof several tweets which have administered threats andplaced a bounty on his safety.

15. Hence, it has been submitted that in the exercise of itsjurisdiction under Article 32 of the Constitution, the Court should quashthe FIRs since none of the tweets on the basis of which FIRs have beenregistered provokes hatred towards any community or is derogatory toany religion or a religious denomination.

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16. Opposing these submissions, Ms Garima Prashad submittedthat:

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(i) There is a genuine apprehension that the tweets which havebeen put out by the petitioner have spread hate;

(ii) The tweets which have been put out by the petitioner havea real potential to create a communal divide; D

(iii) The SIT was formed by the State of Uttar Pradeshconsidering the gravity of the situation, in order to maintainpeace and harmony; and

(iv) The conduct of the petitioner in engaging in repeated actsof tweeting would justify the invocation of criminal law.

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17. The narration of facts in the prefatory part of the judgementwould indicate that FIR No 172/2022 which has been registered on 20June 2022 at the Special Cell of the Delhi Police invokes offencespunishable under Sections 153-A, 295-A, 201 and 120-B of IPC, to whichthe investigating authority has added the provisions of Section 35 ofFCRA. The Delhi Police have submitted a comprehensive status reportbefore the Additional Sessions Judge at the Patiala House Courts bearingon the course of investigation, the tweets which form the subject matterof the investigation, and the search and seizure which has been carriedout at the premises of the petitioner. In other words, it is evident fromthe record that the investigation which has been conducted by the SpecialCell of the Delhi Police is comprehensive in nature and extends acrossthe gamut of tweets put out by the petitioner. The petitioner was grantedregular bail in the proceedings arising out of FIR No 172/2022 by anorder dated 15 July 2022 of the Additional Sessions Judge at the PatialaHouse Courts.

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A18. In the proceedings which reached this Court arising out ofFIR No 226/2022 registered at PS Khairabad in the District of Sitapur,the petitioner was granted interim bail on 8 July 2022. The order grantinginterim bail has been extended pending further orders on 12 July 2022.

19. The grant of bail, first by this Court on 12 July 2022 and nextBby the Patiala House Courts on 15 July 2022, however, has not beensufficient to secure the personal liberty of the petitioner. The petitioneris still embroiled in successive FIRs which have been registered in diversePolice Stations in the State of Uttar Pradesh where he is in judicialcustody and applications for the grant of bail are pending. The prosecutionseeks orders for police remand.C

20. Essentially, the allegations against the petitioner pertain to thetweets which have been put out by him. The three notices issued byPolice Stations at Hathras Kotwali, Sikandra Rao, and Khairabad underSection 91 CrPC are verbatim the same. Having found from the recordthat the petitioner has been subjected to a sustained investigation by theDDelhi Police, we find no reason or justification for the deprivation of theliberty of the petitioner to persist any further. Consequently, we are ofthe view that the petitioner must be released on interim bail in each ofthe FIRs which forms the subject matter of these proceedings, underArticle 32 of the Constitution. The existence of the power of arrest mustEbe distinguished from the exercise of the power of arrest. The exerciseof the power of arrest must be pursued sparingly. In the present case,there is absolutely no justification to keep the petitioner in continuedcustody any further and to subject him to an endless round of proceedingsbefore diverse courts when the gravamen of the allegations in each ofthe said FIRs arises out of the tweets which have been put out by theFpetitioner, and which also form the subject matter of the investigationbeing conducted by the Delhi Police in FIR 172/2022.

21. In Arnab Ranjan Goswami v. Union of India,[8] while dealingwith the issue of a multiplicity of proceedings and harassment to theaccused, a two judge bench of which one of us (Dr DY Chandrachud)Gwas a part, held:

“32. Article 32 of the Constitution constitutes a recognition of theconstitutional duty entrusted to this Court to protect the fundamentalrights of citizens. The exercise of journalistic freedom lies at the H8 (2020) 14 SCC 12

core of speech and expression protected by Article 19(1)(a). Thepetitioner is a media journalist. The airing of views on televisionshows which he hosts is in the exercise of his fundamental rightto speech and expression under Article 19(1)(a). India’s freedomswill rest safe as long as journalists can speak truth to powerwithout being chilled by a threat of reprisal. The exercise ofthat fundamental right is not absolute and is answerable to thelegal regime enacted with reference to the provisions of Article19(2). But to allow a journalist to be subjected to multiplecomplaints and to the pursuit of remedies traversingmultiple states and jurisdictions when faced with successiveFIRs and complaints bearing the same foundation has astifling effect on the exercise of that freedom. This willeffectively destroy the freedom of the citizen to know of the affairsof governance in the nation and the right of the journalist to ensurean informed society. Our decisions hold that the right of a journalistunder Article 19(1)(a) is no higher than the right of the citizen tospeak and express. But we must as a society never forget thatone cannot exist without the other. Free citizens cannot exist whenthe news media is chained to adhere to one position.”

(emphasis supplied)

Further, this Court reiterated the role of courts in protecting personalliberty and ensuring that investigations are not used as a tool of harassment:

“60. [...] Courts must be alive to the need to safeguard the publicinterest in ensuring that the due enforcement of criminal law isnot obstructed. The fair investigation of crime is an aid to it. Equallyit is the duty of courts across the spectrum – the district judiciary,the High Courts and the Supreme Court – to ensure that the criminallaw does not become a weapon for the selective harassment ofcitizens. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminallaw on the one hand and the need, on the other, of ensuringthat the law does not become a ruse for targetedharassment. Liberty across human eras is as tenuous as tenuouscan be. Liberty survives by the vigilance of her citizens, on thecacophony of the media and in the dusty corridors of courts aliveto the rule of (and not by) law. Yet, much too often, liberty is acasualty when one of these components is found wanting.

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A61. [...] The doors of this Court cannot be closed to a citizen whois able to establish prima facie that the instrumentality of the Stateis being weaponized for using the force of criminal law. Our courtsmust ensure that they continue to remain the first line ofdefense against the deprivation of the liberty of citizens.Deprivation of liberty even for a single day is one day tooBmany. We must always be mindful of the deeper systemicimplications of our decisions.”

(emphasis supplied)

22. As regards the prayer for quashing of the FIRs, an essentialCaspect of the matter which must be noticed at this stage is that theinvestigation by the Special Cell of the Delhi Police in FIR No 172/2022 pertains to offences of a cognate nature to those which havebeen invoked in the FIRs which have been lodged before the PoliceStations in Uttar Pradesh. Before this court can embark on an enquiryas to whether the FIRs should be quashed, it is appropriate that theDpetitioner pursues his remedies in accordance with the provisions ofArticle 226 of the Constitution and/or section 482 of the CrPC. However,a fair investigative process would require that the entirety of theinvestigation in all the FIRs should be consolidated and entrusted toone investigating authority. The overlap in the FIRs, emanating as theyEdo from the tweets of the petitioner, only goes to emphasize the needfor a consolidated, as opposed to piece-meal investigation by a diverseset of law enforcement agencies.

23. We are accordingly of the view that the alternate prayer whichhas been adduced on behalf of the petitioner should be accepted, as aFconsequence of which all the FIRs which have been registered againstthe petitioner including the FIRs which have been noted above arisingout of the Petitioner’s tweets should be transferred for investigation tothe Special Cell of the Delhi Police. As a consequence of the abovedirection, the SIT which has been constituted by the Uttar Pradesh Policeshall be rendered redundant and shall be disbanded. While we have notGproceeded to quash the FIRs as sought in prayer (a), we expressly clarifythat we have granted liberty to the petitioner to move the High Court ofDelhi in proceedings under Section 482 CrPC, in the event that he isadvised to seek the quashing of the FIRs before the High Court of Delhi.All proceedings in connection with the FIRs shall lie before the HighCourt of Delhi for such remedies as are available in law. The directionH

for the transfer of the investigation of the FIRs which have been registeredin Uttar Pradesh to the Special Cell of the Delhi Police shall apply to allthe existing FIRs forming the subject matter of the tweets which havebeen put out by the petitioner and to any future FIRs which may beregistered against him on the same subject matter.

24. We also order and direct that the petitioner shall be entitled tothe protective order of interim bail which has been granted by this Courtnot only in respect of the FIRs which have already been registered, butalso in respect of the FIRs which will hereafter be registered on thesame subject matter in regard to the tweets which have been put out byhim.

25. As evident from the facts narrated above, the machinery ofcriminal justice has been relentlessly employed against the petitioner.Despite the fact that the same tweets allegedly gave rise to similaroffences in the diverse FIRs mentioned above, the petitioner wassubjected to multiple investigations across the country. Consequently,he would be required to hire multiple advocates across districts, filemultiple applications for bail, travel to multiple districts spanning twostates for the purposes of investigation, and defend himself beforemultiple courts, all with respect to substantially the same alleged causeof action. Resultantly, he is trapped in a vicious cycle of the criminalprocess where the process has itself become the punishment. It alsoappears that certain dormant FIRs from 2021 were activated as certainnew FIRs were registered, thereby compounding the difficulties facedby the petitioner.

26. Police officers are vested with the power to arrest individualsat various stages of the criminal justice process, including during thecourse of investigation. However, this power is not unbridled. In termsof Section 41(1)(b)(ii) of the CrPC, the police officer in question mustbe satisfied that such arrest is necessary to prevent the person sought tobe arrested from committing any further offence, for proper investigationof the offence, to prevent the arrestee from tampering with or destroyingevidence, to prevent them from influencing or intimidating potentialwitnesses, or when it is not possible to ensure their presence in courtwithout arresting them.

27. Police officers have a duty to apply their mind to the casebefore them and ensure that the condition(s) in Section 41 are met before A

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Athey conduct an arrest. This Court has time and again, reiterated theimportance of doing so, including in Arnesh Kumarv.State of Bihar,[9]where the Court observed:

“6. [...] The existence of the power to arrest is one thing, thejustification for the exercise of it is quite another. Apart from powerBto arrest, the police officers must be able to justify the reasonsthereof. No arrest can be made in a routine manner on a mereallegation of commission of an offence made against a person…”

28. We once again have occasion to reiterate that the guidelineslaid down in Arnesh Kumar (supra) must be followed, without exception.CThe raison d’être of the powers of arrest in relation to cognizable offencesis laid down in Section 41. Arrest is not meant to be and must not beused as a punitive tool because it results in one of the gravest possibleconsequences emanating from criminal law: the loss of personal liberty.Individuals must not be punished solely on the basis of allegations, andwithout a fair trial. When the power to arrest is exercised withoutDapplication of mind and without due regard to the law, it amounts to anabuse of power. The criminal law and its processes ought not to beinstrumentalized as a tool of harassment. Section 41 of the CrPC as wellas the safeguards in criminal law exist in recognition of the reality thatany criminal proceeding almost inevitably involves the might of the state,Ewith unlimited resources at its disposal, against a lone individual.

29. The counsel for the State of Uttar Pradesh attempted topersuade this Court that the petitioner must be barred from tweetingwhen he is on bail. Section 438(2) stipulates that the High Court or theCourt of Sessions can direct a person to be released on conditionalFbail. The provision provides that the Court shall impose conditions inthe context of the facts of a particular case. The list of illustrative bailconditions stipulated in Sections 437 and 438 relate to the need to ensurea proper investigation and fair trial[10] or to prevent the accused fromcommitting an offence similar to the one he is suspected of[11], or in theinterest of justice[12]. The phrase ‘interest of justice’ has been interpretedGin prior judgments of this Court where it has been held that the discretionof the Court in imposing conditions on bail must be exercised judiciously 9 (2014) 8 SCC 273

10 Sections 438(2) and 437 (3)(c) of CrPC11 Section 437(3)(b) of CrPCH12 Section 437 of CrPC

and to advance a fair trial.[13] The bail conditions imposed by the Courtmust not only have a nexus to the purpose that they seek to serve butmust also be proportional to the purpose of imposing them. The courtswhile imposing bail conditions must balance the liberty of the accusedand the necessity of a fair trial. While doing so, conditions that wouldresult in the deprivation of rights and liberties must be eschewed. Inthe decision in Parvez Noordin Lokhandwalla v. State ofMaharashtra[14], a two-Judge Bench of this Court, of which one of us(Dr DY Chandrachud) was a part, it was observed that bail conditionsmust not be disproportionate to the purpose of imposing them:

“21. [...] The conditions which a court imposes for the grant ofbail - in this case temporary bail - have to balance the publicinterest in the enforcement of criminal justice with the rights ofthe accused. The human right to dignity and the protection ofconstitutional safeguards should not become illusory by theimposition of conditions which are disproportionate to the need tosecure the presence of the accused, the proper course ofinvestigation and eventually to ensure a fair trial. The conditionswhich are imposed by the court must bear a proportionalrelationship to the purpose of imposing conditions. The nature ofthe risk which is posed by the grant of permission as sought in thiscase must be carefully evaluated in each case.”

30. Merely because the complaints filed against the petitioner arisefrom posts that were made by him on a social media platform, a blanketanticipatory order preventing him from tweeting cannot be made. Ablanket order directing the petitioner to not express his opinion - an opinionthat 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 orderagainst the petitioner. Gag orders have a chilling effect on the freedomof 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 ofcommunication to dispel false news and misinformation in this age ofmorphed images, clickbait, and tailored videos. Passing an order restricting 13 Kunal Kumar Tiwari v. The State of Bihar, (2018) 16 SCC 74; Dataram Singh v. Stateof Uttar Pradesh, (2013) 15 SCC 570; Sumit Singh v. State (NCT of Delhi), (2013) 15SCC 570.14 (2020) 10 SCC 77

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Ahim from posting on social media would amount to an unjustified violationof the freedom of speech and expression, and the freedom to practicehis profession.

31. For the above reasons, we allow the petition in part in termsof the following directions:

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(i) The petitioner shall stand enlarged on interim bail, subjectto his filing a personal release bond in the amount of Rs20,000 in connection with the following FIRs:

a)FIR No. 502/2021, dated 15.06.2021, PS Loni Border,district Ghaziabad u/s 153, 153-A, 295-A, 505, 120-CB and 34 IPC.

b)FIR No. 193/2021 dated 27.08.2021 registered at PSChandauli for offences punishable under Section 67of IT Act.

c)FIR No. 511/2021, dated 18.09.2021, PS Mohamadidistrict Lakhimpur, u/s 153-A, 153B/505(1)8 and505(2) IPC.

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d)FIR No. 226/2022 dated 01.06.2022, PS Khairabad,district Sitapur, u/Sec 295-A(2) IPC and Section 67of IT Act.E

e)FIR No. 286/2022 dated 10.06.2022, PS Sikandrarao,Hathras, u/s 147, 149, 153A, 353, 188, 120-B of IPCand u/s 7 of the CLA Act; and f)FIR No. 237/2022, dated 04.07.2022, PS HathrasFKotwali on a complaint dated 14.06.2022 u/Sec 153-A, 295-A, 298 IPC and section 67 of the IT Act;

(ii) As regards Crime No 199 of 2021 dated 24 July 2021registered at PS Charthawal, Muzaffarnagar, the charge-sheet under Section 173 of CrPC has been filed. TheGproceedings in respect of the said Case Crime shall standtransferred to the Chief Judicial Magistrate, Patiala HouseCourts and shall be taken up from the stage that has beenreached before the earlier Court. The petitioner has beenenlarged on bail. The order enlarging the petitioner on bailshall continue to remain in force; H

(iii) The investigation into the FIRs set out in paragraph (i) aboveAshall stand transferred from the Uttar Pradesh Police tothe Special Cell of the Delhi Police. As a consequence, theSIT which was constituted by the Director General of Police,Uttar Pradesh on 10 July 2022, shall stand disbanded;

(iv) The directions contained in (i) and (iii) above shall standBextended to any other FIR which may be registered againstthe petitioner hereafter in respect of the same subject matteras the above FIRs in which event (a) the investigation ofthe FIR shall stand transferred to the Special Cell of theDelhi Police; (b) the petitioner shall be entitled to the orderCof interim bail, as set out above.

(v) The petitioner would be at liberty to pursue his rights andremedies in proceedings under Article 226 of the Constitution/ Section 482 of CrPC before the High Court of Delhi inrespect of the FIRs which have been or which may beDregistered against him, and in that event, nothing containedin this judgment shall amount to an expression of opinion onthe merits of such proceedings; and

(vi) The bail bonds in compliance with the above direction shallbe presented before the Chief Judicial Magistrate at thePatiala House Courts, Delhi. Immediately upon theEpresentation of the bail bonds, the Superintendent at theTihar Jail shall take necessary steps to ensure that thepetitioner is released from judicial custody no later than by6 pm today.

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32. Pending application, if any, stands disposed of.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Writ petition partly allowed.

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