NewsClick Arrests | 'Not A Penny Came From China, Grounds Of Arrest Not Provided': Prabir Purkayastha To Delhi HC As It Reserves Order In His Plea

The Delhi High Court on Monday reserved its Judgement in pleas filed by NewsClick founder Prabir Purkayastha and Human Resources head Amit Chakraborty challenging their remand order in the UAPA case registered following allegations of the portal receiving money for pro-China propaganda.

Justice Tushar Rao Gedela reserved the order after hearing counsels for both Purkayastha, Chakraborty and the Delhi Police for over 2 hours. 

Regarding the challenge to the UAPA FIR registered by Delhi Police’s Special Cell, the court will decide if notice has to be issued.

It may be noted that in their pleas, Purkayastha and Chakraborty have challenged the UAPA FIR and the trial court order remanding them to police custody for seven days till October 10.

Arguments before the Court

At the outset, appearing for Purkayastha, Senior Advocate Kapil Sibal strongly argued that the NewsClick founder was not supplied with the grounds of arrest. Taking the court through the allegations against Purkayastha and others in the UAPA case, Sibal also claimed that 'not a penny' was received by them from China. 

On the other hand, appearing for the Delhi Police, Solicitor General of India Tushar Mehta submitted a reply, as directed by the Bench in its last order, was filed in the matter, stating that the arrested persons were in fact “informed” about grounds of arrest. 

Referring to the response filed by Delhi Police stating that Purkayastha was served with grounds of arrest, Sibal submitted that the grounds of arrest are different from reasons and even the reasons provided are also different.

Senior Advocate Dayan Krishnan, also appearing for Purkayastha, submitted that Purkayastha's right under Article 22(1) of the Constitution of India has been violated as his client was neither provided with the grounds of his arrest nor was he allowed to have his lawyer at the time of passing of remand order.

In this regard, Senior Counsel Krishnan referred to the Supreme Court's last week judgment in the case of Pankaj Bansal vs. Union of India 2023 LiveLaw (SC) 844 (aka M3M Case), wherein the Top Court held that a copy of written grounds of arrest has to be furnished to the arrested person as a matter of course and without exception.

In this backdrop, referring to the trial court's order remanding Purkayastha to 7 days of police custody, Krishnan argued that in its order, the concerned Magistrate did not state that he had satisfied himself that the accused had access to a lawyer or he had been provided with the grounds of arrest.

Krishnan strongly flagged the issue of the non-availability of a lawyer to Purkasyastha at the time of passing the remand order. He submitted that at the relevant point of time, the Magistrate had a duty to satisfy himself as to whether the accused had any objection to remand, however, since he had no access to his lawyer, he could not have objected to the remand being given. 

On the other hand, justifying the remand order as well as Delhi Police's act to arrest the accused persons, SGI Tushar Mehta, referring to Section 43B of UAPA (Procedure of arrest, seizure), said that textually, the provision doesn't require supply of the reasons and it only requires informing the accused about the grounds of arrest. Mehta added that the provision was a slight departure from Article 22 of the Constitution of India.

"This (Section 43B) was complied with, we intimated to him the grounds of arrest. This fact is not disputed. He was not supplied, it's an admitted fact. He was informed about the grounds of arrest and was produced before a special court within time," he submitted.

Regarding the alleged violation of Pankaj Bansal's judgment in the matter, SGI Mehta submitted that the Supreme Court's Judgment was uploaded on October 04 and that it will not apply to the arrest which happened on October 03 as the words used in the judgment is “henceforth”, meaning thereby that it will have a prospective effect.

He also apprised the bench that a review petition is being filed to challenge Pankaj Bansal's Judgment. 

More details here: Centre To File Review Against Supreme Court's Judgment Directing ED To Inform Grounds Of Arrest In Writing

"Before 4th (October) if the arrest has taken place without supplying of the grounds, in this case the arrest happened on 3rd, then I can't be found foul of Pankaj Bansal judgment," he submitted.

In response to this, Sibal argued that the whole ground in Pankaj Bansal's case was that the grounds of the arrest weren't supplied and that only if the word 'henceforth' has been used in the judgment, it does not mean that it will have a prospective effect.

He also contended that since the Supreme Court signed the judgment digitally on October 03, the same will apply to the arrest in question.

Furthermore, Mehta also objected to Sibal's claim that there was a subsequent addition in the remand order. Mehta said that the 'allegation' against a judicial officer regarding tampering of evidence had to be taken 'very seriously' and that the same was required to be stated on an affidavit that there had been tampering with the judicial order.

Responding to it, Sibal said that he was not levelling any allegations regarding tampering with the remand order and that he was merely flagging the issue that the remand order was passed at 6 AM in the morning and that the Rules say that the remand order must record the time when the order is pronounced.

Last week, while remanding the duo to police custody, the trial court had agreed to hand over a copy of the remand application filed by the Delhi Police to their counsel. In its order, the judge had also directed that they be supplied with a copy of the FIR.

The background of the case

The allegations against the NewsClick founder came to light after a New York Times report published on August 5th alleged that online media outlet NewsClick had received funds from China to create an “anti-India” atmosphere.

This was followed by a series of raids by the Delhi police into the residences of journalists and writers, both past and present, associated with Newsclick.

A statement was issued by the news portal yesterday claiming that it was not provided with a copy of the FIR, or informed about the exact particulars of the offences with which it was charged.

“Electronic devices were seized from the Newsclick premises and homes of employees, without any adherence to due process such as the provision of seizure memos, hash values of the seized data, or even copies of the data. Newsclick’s office has also been sealed in a blatant attempt at preventing us from continuing our reporting,” the statement said.

It added that Newsclick strongly condemns the actions of a Government that “refuses to respect journalistic independence, and treats criticism as sedition or anti-national propaganda.”

“Newsclick has been targeted by a series of actions by various agencies of the Government of India since 2021. Its offices and residences of officials have been raided by the Enforcement Directorate, the Economic Offences Wing of Delhi Police and the Income Tax Department. All devices, laptops, gadgets, phones, etc. have been seized in the past. All emails and communications have been analysed under the microscope. All bank statements, invoices, expenses incurred and sources of funds received by Newsclick in the last several years have been scrutinised by different agencies of the Government from time to time,” it added.

Prior to the NYT report, NewsClick was facing another investigation by the Enforcement Directorate (ED) based on allegations of money laundering. This had initiated multiple raids by ED into the premises of the editors and the case is still pending.

NewsClick and Purkayastha had earlier approached the Delhi High Court seeking a copy of the ECIR registered by ED in September 2020 in the money laundering case, which had passed interim orders on June 21, 2021 and July 20 directing the ED not to take any coercive action against the website and its editor in chief.

Subsequently, ED had sought vacation of two orders passed by a co-ordinate bench on June 21, 2021 and July 20, 2021.

Case Title: PRABIR PURKAYASTHA v. STATE NCT OF DELHI & ANR. and other connected matters