BREAKING| "Arrest Must Not Be Used As Punitive Tool" : Supreme Court Says Mohammed Zubair Was "Trapped In Vicious Cycle Of Criminal Process"

The Supreme Court on Monday uploaded the judgment in the Mohammed Zubair case, with some important reminders to the police agencies against the use of power of arrest as a "punitive tool".

A bench comprising Justices DY Chandrachud and AS Bopanna had last week granted bail to Zubair in all the 6 FIRs registered by the Uttar Pradesh police in different districts over his tweets and clubbed those cases with the Delhi FIR. The Court had only released the operative portion of the order on July 20 to enable the early release of the petitioner and the complete judgment was uploaded today evening.

From the facts of the case, the bench concluded that the criminal justice system was "relentlessly employed against" the fact-checking journalist and that he was trapped in a "vicious cycle of the criminal process".

"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".

Arrest should not be a punitive tool

The Court stated in the judgment that the power of arrest is not unbridled.

"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", the judgment stated. The Court reiterated the guidelines for arrest laid down in the 2014 case Arnesh Kumar vs State of Bihar.

The judgment authored by Justice Chandrachud stated :

"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".

Bail conditions must be proportionate

The Court also categorically refused to impose a bail condition that Zubair should not post tweets.

"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 judgment stated.

"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", the Court added.

The Court disposed of Zubair's writ petition by granting him bail in all the UP Police cases and clubbing them with the Delhi Police FIR, and granting him liberty to approach the Delhi High Court seeking the quashing of the cases.

The Court said that its directions will apply to future cases which might be registered on the basis of his tweets.

Case Title : Mohammed Zubair vs State of NCT of Delhi and others

Citation : 2022 LiveLaw (SC) 629

Headnotes 

Code of Criminal Procedure - Power of Arrest - Section 41- 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 - Supreme Court reiterates the guidelines for arrest laid down in the 2014 Arnesh Kumar vs State of Bihar (2014) 8 SCC 273 [Para 27, 28]

Constitution of India - Article 21- Personal Liberty and power of arrest- 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 [Para 27, 28]

Code of Criminal Procedure - Section 439(2) - Bail conditions-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 [ Para 29]

Constitiution of India - Article 19(1)(a) - Freedom of speech and expression - Mohammed Zubair Case- Blanket bail orders to prevent the petitoner from tweeting cannot be imposed, merely because the case is based on tweets- 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 [Para 30]

Click here to read/download the judgment