Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
Writ Petition (Criminal) No 279 of 2022
Mohammed Zubair .... Petitioner
Versus
State of NCT of Delhi & Ors ....Respondents
J U D G M E N T
Dr 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
Signature Not Verified
Digitally signed by the Delhi Police for alleged offences punishable under Sections 153-A, 295-A,
Sanjay Kumar
Date: 2022.07.25
17:07:35 IST
Reason:
1
1
201 and 120-B of the Indian Penal Code 1860 . The offence under Section 35 of
2
the Foreign Contribution (Regulation) Act 2010 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
1
“IPC”
2
“FCRA”
2
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
3
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 against the petitioner, both before
and after the FIR before the Special Cell. These FIRs are:
(i) FIR No 502/2021 dated 15 June 2021 registered at PS Loni Border,
District Ghaziabad for offences punishable under Sections 153, 153-A,
295-A, 505, 120-B and 34 of IPC;
(ii) FIR No 199/2021 dated 24 July 2021 registered at PS Charthawal,
Muzaffarnagar for offences punishable under Sections 192, 504 and
506 of IPC;
(iii) FIR No 193/2021 dated 27 August 2021 registered at PS Chandauli for
offences punishable under Section 67 of the Information Technology
3
Act 2000 ;
(iv) FIR No 511/2021, dated 18 September 2021 registered at PS
Mohamadi District Lakhimpur for offences punishable under Sections
153-A, 153B/505(1)B and 505(2) of IPC;
(v) FIR No 226/2022 dated 1 June 2022 registered at PS Khairabad,
District Sitapur for offences punishable under Section 295-A of IPC and
Section 67 of the IT Act;
(vi) FIR No 286/2022 dated 10 June 2022 registered at PS Sikandrarao,
Hathras for offences punishable under Sections 147, 149, 153A, 353,
3
“IT Act”
4
188, 120-B of IPC and under Section 7 of the Criminal Law
4
Amendment Act 1932 ; and
(vii) FIR No 237/2022 dated 4 July 2022 registered at PS Hathras Kotwali
for offences punishable under Sections 153-A, 295-A, 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 Judicial Magistrate;
(ii) In FIR No 511/2021 registered at Police Station Mohamadi, the petitioner
was remanded on 11 July 2022 to fourteen days of judicial custody. An
application seeking police custody was listed for submissions on 20 July
2022;
(iii) In FIR No 226/2022 at Police Station Khairabad, the petitioner was
remanded to judicial custody for 14 days by the JMFC-I, Sitapur on 4 July
2022 and to police custody between the period from 8 July 2022 until 14
July 2022. By an order of this Court dated 8 July 2022, the petitioner was
granted interim bail in Special Leave Petition (Crl) No 6138 of 2022. The
order of interim bail was extended on 12 July 2022 pending further orders;
and
(iv) In FIR No 237/2022 registered at Police Station Hathras Kotwali, the
petitioner has been remanded to fourteen days of judicial custody on 13
July 2022. On 15 July 2022, an application seeking fourteen days of police
custody was filed.
4
“CLA”
5
7 In the meantime, arising out of the FIRs which have been registered at
diverse Police Stations in the State of Uttar Pradesh, the petitioner as well as the
Director of ALT News / Pravda Media Foundation (and the company) were
5
served with notices under Section 41A of the Code of Criminal Procedure 1973
or, as the case may be, under Section 91 of CrPC for the production of
documents such as: (i) the balance sheet of the last three years; (ii) the income
tax returns of the Director and co-founders; (iii) details with regard to the payment
of corporate tax by ALT News / Pravda Media Foundation; (iv) PAN cards of ALT
News / Pravda Media Foundation; (v) bank statements of ALT News / Pravda
Media Foundation for the last three years; (vi) details of donations received since
the inception of the ALT News website; and (vii) an undertaking in regard to the
source of funds.
8 These proceedings invoke the jurisdiction under Article 32 of the
Constitution of India. The relief which has been sought primarily is for the
quashing of the following FIRs, namely:
“a) F.I.R no. 502/2021, dt. 15.06.2021, PS Loni
Border, district Ghaziabad u/s 153, 153-A,
295-A, 505, 120-B and 34 of the Indian
Penal Code, 1860.
b) Case Crime No. 199/2021, dt.
24.07.2021,PS Charthawal, Muzaffamagar
u/Sec 192, 504, 5061PC.
c) FIR no. 511/2021, dt. 18.09.2021, PS
Mohamadi district Lakhimpur, 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 a complaint dt.
5
“CrPC”
6
14.06.2022 u/Sec 153-A, 295-A, 298 IPC
and section 67 of the IT Act.
e) Case Crime no. 286/2022 dt. 10.06.2022,
Hathras, PS Sikandrarao, u/s 147, 149,
153A, 353, 188, 120-B of the Indian Penal
Code, 1860 and u/s 7 of the CLA Act;”
In the alternative, the petitioner seeks a direction that the above FIRs along with
FIR No. 226/2022, PS Khairabad, Sitapur should be clubbed with FIR No
172/2022 which is under investigation by the Special Cell of Delhi Police.
6
9 Office Memorandum No. DG-8-94-(30) of 2022 has been issued on 10
7
July 2022, in terms of which a Special Investigation Team has been constituted
by the Director General of Police, Uttar Pradesh for investigating the six FIRs
which have been registered against the petitioner in Uttar Pradesh.
10 Apart from the prayer for quashing the FIRs or, in the alternative, for
clubbing the investigation of the six FIRs mentioned in the OM with the FIR which
is pending investigation before the Special Cell 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 directing that no coercive steps be taken with respect to FIR
193 of 2021, PS Chandauli.
11 The petition was mentioned before this Court for urgent orders on 18 July
2022 with the permission of the Hon’ble Chief Justice of India. While entertaining
the petition on 18 July 2022, this Court directed that no precipitate steps shall be
6
“OM”
7
“SIT”
7
taken against the petitioner on the basis of the five FIRs which form the subject
matter of these proceedings. Notice was issued by this Court on 18 July 2022.
12 We have heard Ms Vrinda Grover, senior counsel appearing on behalf of
the petitioner and Ms Garima Prashad, senior counsel and Additional Advocate
General appearing on behalf of the State of Uttar Pradesh.
13 Appearing on behalf of the petitioner, Ms Vrinda Grover submitted that:
(i) The tweets which have been put out by the petitioner are the subject
matter of the FIRs which have been registered in Delhi and in Police
Stations within different districts in the State of Uttar Pradesh;
(ii) All the FIRs, broadly speaking, implicate alleged offences punishable
under the same provisions, namely, Sections 153A, 295A, 298 and 505
of IPC and Section 67 of the IT Act;
(iii) In the FIR which has been registered at the Special Cell in Delhi, the
petitioner was subjected to an order of remand, following which
eventually he has been granted regular bail by the Additional Sessions
Judge at the Patiala House Courts. The status report which has been
submitted by the Delhi Police before the Additional Sessions Judge
would indicate that the scope of the investigation has been widened so
as to also include the provisions of the FCRA; and
(iv) Broadly speaking, the tweets which have been adverted to in the status
report submitted by the Delhi Police before the Additional Sessions
Judge also form the subject matter of the FIRs which have been
registered in the diverse Police Stations in the State of Uttar Pradesh.
8
14 On the above premises, counsel submitted that:
(i) In none of the tweets has the petitioner even remotely used any
language which is improper or which would amount to an offence with
reference to which the provisions of the criminal law could be invoked;
(ii) On the contrary, in several of the tweets, the petitioner had tagged the
Uttar Pradesh Police and had invited action by the law enforcement
machinery consequent on speeches made by other persons which were
found to be objectionable;
(iii) The gravamen of all the FIRs which have been registered against the
petitioner essentially remains the same, arising out of the tweets by the
petitioner;
(iv) The instrument of criminal law has been used to harass and silence the
voice of the petitioner which would be apparent from the manner in
which the petitioner has been made to face successive proceedings
arising out of the FIRs which have been lodged in the State of Uttar
Pradesh; and
(v) The petitioner has a real and genuine apprehension in regard to the
safety and security of his life following the publication of several tweets
which have administered threats and placed a bounty on his safety.
15 Hence, it has been submitted that in the exercise of its jurisdiction under
Article 32 of the Constitution, the Court should quash the FIRs since none of the
tweets on the basis of which FIRs have been registered provokes hatred towards
any community or is derogatory to any religion or a religious denomination.
9
16 Opposing these submissions, Ms Garima Prashad submitted that:
(i) There is a genuine apprehension that the tweets which have been put
out by the petitioner have spread hate;
(ii) The tweets which have been put out by the petitioner have a real
potential to create a communal divide;
(iii) The SIT was formed by the State of Uttar Pradesh considering the
gravity of the situation, in order to maintain peace and harmony; and
(iv) The conduct of the petitioner in engaging in repeated acts of tweeting
would justify the invocation of criminal law.
17 The narration of facts in the prefatory part of the judgement would indicate
that FIR No 172/2022 which has been registered on 20 June 2022 at the Special
Cell of the Delhi Police invokes offences punishable under Sections 153-A, 295-
A, 201 and 120-B of IPC, to which the investigating authority has added the
provisions of Section 35 of FCRA. The Delhi Police have submitted a
comprehensive status report before the Additional Sessions Judge at the Patiala
House Courts bearing on the course of investigation, the tweets which form the
subject matter of the investigation, and the search and seizure which has been
carried out at the premises of the petitioner. In other words, 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.
10
18 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.
19 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.
20 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, we find no reason or
justification for the deprivation of the liberty of the petitioner to persist any further.
Consequently, we are of the view that 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
11
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.
8
21 In v. , while dealing with the
Arnab Ranjan Goswami Union of India
issue of a multiplicity of proceedings and harassment to the accused, a two judge
bench of which one of us (Dr DY Chandrachud) was a part, held:
“32. Article 32 of the Constitution constitutes a
recognition of the constitutional duty entrusted to
this Court to protect the fundamental rights of
citizens. The exercise of journalistic freedom lies at
the core of speech and expression protected by
Article 19(1)(a). The petitioner is a media journalist.
The airing of views on television shows which he
hosts is in the exercise of his fundamental right to
speech and expression under Article 19(1)(a).
India’s freedoms will rest safe as long as
journalists can speak truth to power without
The exercise
being chilled by a threat of reprisal.
of that fundamental right is not absolute and is
answerable to the legal regime enacted with
reference to the provisions of Article 19(2). But to
allow a journalist to be subjected to multiple
complaints and to the pursuit of remedies
traversing multiple states and jurisdictions
when faced with successive FIRs and
complaints bearing the same foundation has a
stifling effect on the exercise of that freedom.
This will effectively destroy the freedom of the
citizen to know of the affairs of governance in the
nation and the right of the journalist to ensure an
informed society. Our decisions hold that the right
of a journalist under Article 19(1)(a) is no higher
than the right of the citizen to speak and express.
But we must as a society never forget that one
cannot exist without the other. Free citizens cannot
exist when the news media is chained to adhere to
one position.”
(emphasis supplied)
8
(2020) 14 SCC 12
12
Further, this Court reiterated the role of courts in protecting personal liberty and
ensuring that investigations are not used as a tool of harassment:
“60. [...] Courts must be alive to the need to safeguard the
public interest in ensuring that the due enforcement of
criminal law is not obstructed. The fair investigation of
crime is an aid to it. Equally it is the duty of courts across
the spectrum – the district judiciary, the High Courts and
the Supreme Court – to ensure that the criminal law does
not become a weapon for the selective harassment of
citizens.
Courts should be alive to both ends of the
spectrum – the need to ensure the proper
enforcement of criminal law on the one hand and the
need, on the other, of ensuring that the law does not
become a ruse for targeted harassment. Liberty across
human eras is as tenuous as tenuous can be. Liberty
survives by the vigilance of her citizens, on the
cacophony of the media and in the dusty corridors of
courts alive to the rule of (and not by) law. Yet, much too
often, liberty is a casualty when one of these components
is found wanting.
61. [...] The doors of this Court cannot be closed to a
citizen who is able to establish prima facie that the
instrumentality of the State is being weaponized for using
the force of criminal law . Our courts must ensure that
they continue to remain the first line of defense
against the deprivation of the liberty of citizens.
Deprivation of liberty even for a single day is one day
too many. We must always be mindful of the deeper
systemic implications of our decisions.”
(emphasis supplied)
22 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
13
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.
23 We are accordingly of the view that 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 which have been noted above 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 above direction, the SIT which has been constituted by the
Uttar Pradesh Police shall be rendered redundant and shall be disbanded. While
we have not proceeded to quash the FIRs as sought in prayer (a), we expressly
clarify that we have granted liberty to the petitioner 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.
14
24 We also order and direct 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.
25 As evident from the facts narrated above, 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
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. 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.
26 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
15
witnesses, or when it is not possible to ensure their presence in court without
arresting them.
27 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
9
Arnesh Kumar v. State of Bihar , where the Court observed:
“6. [...] The existence of the power to arrest is one thing,
the justification for the exercise of it is quite another.
Apart from power to arrest, the police officers must be
able to justify the reasons thereof. No arrest can be made
in a routine manner on a mere allegation of commission
of an offence made against a person…”
28 We once again have occasion to reiterate that the guidelines laid down in
Arnesh Kumar (supra) 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.
9
(2014) 8 SCC 273
16
29 The counsel for the State of Uttar Pradesh attempted to persuade this
Court that the petitioner must be barred from tweeting when he is on bail. 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
10
ensure a proper investigation and fair trial or to prevent the accused from
11
committing an offence similar to the one he is suspected of , or in the interest of
12
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
13
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. In the decision
14
in Parvez Noordin Lokhandwalla v. State of Maharashtra , a two-Judge
Bench of this Court, of which one of us (Dr DY Chandrachud) was a part, it was
observed that bail conditions must not be disproportionate to the purpose of
imposing them:
“21. [...] The conditions which a court imposes for the
grant of bail - in this case temporary bail - have to
10
Sections 438(2) and 437 (3)(c) of CrPC
11
Section 437(3)(b) of CrPC
12
Section 437 of CrPC
13
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.
14
(2020) 10 SCC 77
17
balance the public interest in the enforcement of criminal
justice with the rights of the accused. The human right to
dignity and the protection of constitutional safeguards
should not become illusory by the imposition of conditions
which are disproportionate to the need to secure the
presence of the accused, the proper course of
investigation and eventually to ensure a fair trial. The
conditions which are imposed by the court must bear a
proportional relationship to the purpose of imposing
conditions. The nature of the risk which is posed by the
grant of permission as sought in this case must be
carefully evaluated in each case.”
30 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.
31 For the above reasons, we allow the petition in part in terms of the
following directions:
(i) The petitioner shall stand enlarged on interim bail, subject to his filing a
personal release bond in the amount of Rs 20,000 in connection with
the following FIRs:
18
a) FIR No. 502/2021, dated 15.06.2021, PS Loni Border,
district Ghaziabad u/s 153, 153-A, 295-A, 505, 120-B
and 34 IPC.
b) FIR No. 193/2021 dated 27.08.2021 registered at PS
Chandauli for offences punishable under Section 67 of
IT Act.
c) FIR No. 511/2021, dated 18.09.2021, PS Mohamadi
district Lakhimpur, u/s 153-A, 153B/505(1)8 and 505(2)
IPC.
d) FIR No. 226/2022 dated 01.06.2022, PS Khairabad,
district Sitapur, u/Sec 295-A(2) IPC and Section 67 of
IT Act.
e) FIR No. 286/2022 dated 10.06.2022, PS Sikandrarao,
Hathras, u/s 147, 149, 153A, 353, 188, 120-B of IPC
and u/s 7 of the CLA Act; and
f) FIR No. 237/2022, dated 04.07.2022, PS Hathras
Kotwali 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 2021 registered at PS
Charthawal, Muzaffarnagar, the charge-sheet under Section 173 of
CrPC has been filed. The proceedings in respect of the said Case
19
Crime shall stand transferred to the Chief Judicial Magistrate, Patiala
House Courts and shall be taken up from the stage that has been
reached before the earlier Court. The petitioner has been enlarged on
bail. The order enlarging the petitioner on bail shall continue to remain
in force;
(iii) The investigation into the FIRs set out in paragraph (i) above shall
stand transferred from the Uttar Pradesh Police to the Special Cell of
the Delhi Police. As a consequence, the SIT 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 stand extended to
any other FIR which may be registered against the petitioner hereafter
in respect of the same subject matter as the above FIRs in which event
(a) the investigation of the FIR shall stand transferred to the Special
Cell of the Delhi Police; (b) the petitioner shall be entitled to the order of
interim bail, as set out above.
(v) The petitioner would be at liberty to pursue his rights and remedies in
proceedings under Article 226 of the Constitution / Section 482 of CrPC
before the High Court of Delhi in respect of the 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
the merits of such proceedings; and
(vi) The bail bonds in compliance with the above direction shall be
presented before the Chief Judicial Magistrate at the Patiala House
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Courts, Delhi. Immediately upon the presentation of the bail bonds, the
Superintendent at the Tihar Jail shall take necessary steps to ensure
that the petitioner is released from judicial custody no later than by 6
pm today.
32 Pending application, if any, stands disposed of.
…..…..…....…........……………….…........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[Surya Kant]
…..…..…....…........……………….…........J.
[A S Bopanna]
New Delhi;
July 20, 2022
21