Power Of Arrest Must Be Pursued Sparingly, Affirms Supreme Court

The Supreme Court, on July 20, enlarged Mohammad Zubair, co-founder of Alt News, on bail.

Bench of Justices DY Chandrachud, Surya Kant and AS Bopanna, observed that, “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.”

On June 20, the first FIR came to be registered against Zubair by the Special Cell of the Delhi Police. The provisions attracted as per the said FIR were Sections 153A, 295A, 201 and 120B. Section 35 of the Foreign Contribution (Regulation) Act was added later during the course of investigation. Pursuant to the FIR, he was arrested on June 27. 

The factual matrix of the matter revolves around tweets published by Zubair.

Apart from the FIR registered by Delhi Police, a series of FIRs were lodged by several police stations of Uttar Pradesh. Zubair was being taken in custody by one jurisdiction after another.

Notices under Section 41A and 91 of the Cr.P.C. were also received by Zubair which directed him to appear for investigation and provide certain documents pertaining to Alt-News, the organization that he worked for.

The instant writ petition under Article 32 was filed with the prayer of quashing of FIRs and in the alternative clubbing of FIRs so as to obviate harassment to the petitioner. The petitioner also sought interim release and protection against any coercive steps.

Observations

The Court observed that, “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.”

“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,” the Court noted.

Court cited its judgment in Arnab Ranjan Goswami v. Union of India (2020) 14 SCC 12, in which it was held that, “India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal.”

In was further noted in Arnab Ranjan Goswami that, “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.”

The Supreme Court, however, refused to quash the FIRs and gave liberty to the petitioner to approach the Delhi High Court with the appropriate application under Section 482 of Cr.P.C. and Article 226 of the Constitution. 

The Court observed that, “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.”

Reliance was placed upon Arnesh Kumar v. State of Bihar 9 (2014) 8 SCC 273, wherein it was held that, “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…”

“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,” the Court observed.

On the respondents’ counsels request that the petitioner be interdicted from using his social media and tweeting, the Court said, “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.”