Noting that the multiple FIRs against AltNews co-founder Mohammed Zubair stemmed from the same set of tweets giving rise to similar offences, the Supreme Court in its order clubbing all the cases against him and granting him bail said that “the machinery of criminal justice has been relentlessly employed against the petitioner” due to which “he is trapped in a vicious cycle of the criminal process where the process has itself become the punishment”.
Though the Supreme Court granted him the reliefs on July 20, the detailed judgment was released late Monday. The bench of Justice D Y Chandrachud, Justice Surya Kant, and Justice A S Bopanna reiterated in the judgment that the power to arrest must be used sparingly, subject strictly to the law and guidelines laid down by the top court in the Arnesh Kumar case.
“Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned above, 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,” said the bench.
“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,” it added.
The bench noted that police officers have the power to arrest people at various stages of the criminal justice process, including during the course of an 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,” said the bench in its order.
“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, including in Arnesh Kumar v. State of Bihar…We once again have occasion to reiterate that the guidelines laid down in Arnesh Kumar…must be followed, without exception,” it also noted.
The order further said that “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,” it added.
The criminal law and its processes, the bench said, ought not to be instrumentalised 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.”
The Supreme Court also rejected the request to bar Zubair from tweeting when he is on bail stating that “the imposition of such a condition would tantamount to a gag order against the petitioner” and an “unjustified violation of the freedom of speech and expression, and the freedom to practice his profession”.
The judgment said it has been held in the past 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.”
The bench also noted that a blanket order directing Zubair to not express his opinion “would tantamount to a gag order against the petitioner”.
“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.”
“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”.
Transferring the FIRs registered against him at several places in Uttar Pradesh to Delhi where FIRs have also been lodged and investigations are being carried out by the Special Cell, the Supreme Court said it is evident from the record that the investigation which has been conducted by the Special Cell of Delhi Police is comprehensive in nature and extends across the gamut of tweets put out by Zubair.
The top court however refused to quash the FIRs against him and asked him to approach the Delhi High Court for this.
Granting him bail in the cases, the SC said, “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…”.