Arrest must not be used as punitive tool: SC in Mohd. Zubair case Zubair was granted bail last week in all cases, all FIRs registered by the UP Police were clubbed with the Delhi FIR
30, Jul 2022 | CJP Team
The Supreme Court judgment in the Mohammed Zubair case has that stressed upon how “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”.
On July 20, a bench comprising Justices Chandrachud, Surya Kant and AS Bopanna had granted bail to Zubair in all the six First Information Reports (FIRs) registered against him over his tweets. They had also clubbed these FIRs with the Delhi FIR. But at that time, the court had only released the operative potion of the order to enable the early release of the petitioner, whereas the complete judgment was uploaded on Monday, July 25, on the official court website. Let us take a closer look at what the court has said in the case.
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The court observed, “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.”
According to the Court, the existence of the power of arrest must be distinguished from the exercise of the power of arrest. It observed that the exercise of the power of arrest must be pursued sparingly. With respect to the present case,the Court was of the opinion that 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 in FIR 172/2022.
Section 41 and 41A of the Criminal Procedure Code (the Code)
The Court held that police officers are vested with the power to arrest individuals at various stages of the criminal justice process, including during the course of investigation but this power is not unbridled. The observed, “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.”
The Court stated that the 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. Relying upon its judgment in the case of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, the Court held, “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.”
Disproportionate bail conditions
Addressing the plea raised by the counsel for the State of Uttar Pradesh to place a bar on Zubair from tweeting when he is on bail, the Court elaborated on Section 438(2) of the CrPCwhich stipulates that the High Court or the Court of Sessions can direct a person to be released on conditional bail.
Under Section 438(2), 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 ensure a proper investigation and fair trialor to prevent the accused from committing an offence similar to the one he is suspected of, or in the interest of justice.
The Court observed, “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 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 in Parvez NoordinLokhandwalla v. State of Maharashtra (2020) 10 SCC 77, 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.”
It further held, “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 judgment may be read here:
Satender Kumar Antil vs. Central Bureau of Investigation
A week ago,in a landmark judgment in the case of Satender Kumar Antil vs. Central Bureau of Investigation, a Supreme Court bench comprising Justices Sanjay Kishan Kaul and MM Sundaresh, the Court stressed upon the rule “bail over jail” and issued guidelines to prevent unnecessary arrest and remand. It observed, “The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India.” It further stated, “Innocence of a person accused of an offense is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the Court. Thus, it is for that agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied.”
Speaking of the role of the court, it stated, “The rate of conviction in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice.”
It further held, “Criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the Criminal Courts. Any conscious failure by the Criminal Courts would constitute an affront to liberty. It is the pious duty of the Criminal Court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos. A criminal court must uphold the constitutional thrust with responsibility mandated on them by acting akin to a high priest.”
Even in this case, the Court placed reliance on the case of Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273, where it interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. The Court observed that any non-compliance of Section 41 (When police may arrest without warrant) and 41A (Notice of appearance before police officer) of the Code at the time of arrest would entitle the accused for grant of bail. The bench observed that Section 41 and 41A are facets of Article 21 of the Constitution of India.
Indiscriminate arrests and harassment of Human Rights Defenders
On June 25, journalist, educationist and human rights defender, Teesta Setalvad was detained by a team of the Gujarat Anti-Terrorism Squad (ATS) from her residence in Mumbai, just a day after the Supreme Court made a remark about her in the Zakia Jafri case judgment. The complaint filed on behalf of the State against Setalvad quoted an extract from SC’s observation: “As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”
In a written complaint submitted to the Santacruz Police station just minutes before she was whisked away by road to Ahmedabad, Setalvad said that Police Inspector JH Patel of the ATS Ahmedabad and a lady officer in civil clothes allegedly barged into Setalvad’s bedroom, and assaulted her when she demanded to speak to her lawyer. This was clearly an abuse of power during detention, and the assault left Setalvad with a bruise on her left hand. According to Setalvad, the officers refused to show her the First Information Report (FIR) or a warrant till her lawyer arrived.In her complaint, Setalvad clearly stated that after this assault, she feared for her life.
But this wasn’t the first time Setalvad was harassed. In 2018, a case was filed against her by a disgruntled former employee of the NGO Citizens for Justice and Peace (CJP),alleging thatshe had misappropriated funds obtained by her education NGO Khoj from the Ministry of Human Resources Development under the SarvaSiksha Abhiyan, and used them for personal purposes. Khan first tried to get the CBI, then the MHRD to lodge this complaint. When that did not work, his allies in the Crime Branch, Ahmedabad, came to his aid.
Setalvad had cooperated fully with investigations ever since the allegations were first made in March 2018, but the state kept pushing for custody in a bid to imprison and even possibly torture the activist.Justice Revati Mohite Dere of the Bombay High Court granted interim transit bail until May 2018 to Setalvad but soon after, the Ahmedabad Sessions Court turned down her Anticipatory Bail Application (ABA). However, an undeterred Setalvad refused to be cowed by the pressure tactics employed by a vicious and vindictive state, and challenged the order in the Gujarat High Court. In what came as a huge victory, the High Court granted her Anticipatory Bail in February 2019, after deliberating for close to six months.
Setalvad has been battling a series of false cases, of which Khoj was the latest. Clearly, the path-breaking work by CJP, spearheaded by Setalvad, that has ensured the conviction of close to 170 persons — over 120 of which to life imprisonment – is the single most significant reason for her being singled out by a vindictive regime.The Zakia Jafri case was also a serious thorn in the flesh for the powers that be. Curtailing Setalvad personal freedoms and threatening incarceration is clearly the preferred way of this regime.So far, Teesta Setalvad, a human rights defender with three decades of courageous work behind her, has had to seek anticipatory bail in false criminal cases eight times even prior to the Khoj case.
Bharadwaj, who has been fighting for the rights of workers and women, was falsely implicated in the Bhima Koregaon case and was among the 16 activists and human rights defenders arrested in connection with the case. Bharadwaj has been accused of criminal conspiracy, sedition under the Indian Penal Code and Unlawful Activities (Prevention) Act charges of funding a terrorist activity, conspiracy, being a member of terrorist gang or organisation, and supporting a terrorist organisation.
She was arrested in August 2018 in a shocking breach of law and procedure, and in contempt of the High Court of Punjab and Haryana, as the Pune police thwarted the stay granted against her transit remand and attempted to forcibly whisk her away to Pune till well past midnight. She was first ‘detained’, then ‘arrested’ following a Panch document shown to her in Marathi (a language she cannot comprehend) in the early hours of August 28, 2018. Neither the warrant for her arrest nor the FIR were given to her in the language that she could read. She was with her young daughter, alone in her residence at the time. The police seized her laptop, pen drive, and external hard drives leading to genuine fears of “their tampering with data.” The local CJM (Chief Judicial Magistrate) passed an order restoring house arrest only when advocate Vrinda Grover apprised him of the HC order.
Till 12 midnight, Sudha Bhardwaj was held in a Toyota Innova stationed on the dark road outside the house of the CJM in sector 15A, Faridabad. The roads in the area were very dark and dimly lit. The Pune Police and Surajkund Police were called into the house of the learned CJM. After some persuasion the counsels representing Sudha Bhardwaj were also allowed into the CJM house. Advocate Vrinda Grover was first asked to make her submissions in the driveway of the house itself.
After addressing the CJM briefly, she requested the CJM to permit her to make her full submissions in a proper manner as the driveway was dark and it was impossible to show any documents. The CJM then invited all the counsels to wait inside the house. Advocate Vrinda Grover further informed the learned CJM that some applications need to be presented.
The CJM stated that he was informed that the Chandigarh High Court had passed an order in the case of Sudha Bharadwaj. The CJM had, until then, still to hear the counsel on behalf of Sudha Bharadwaj, both on facts and on Law. Thereafter, the CJM then went to the residence of the district judge for advice on the matter. It was midnight and the counsel werewaiting at the residence of the CJM while Sudha Bharadwaj was being detained in a vehicle on the road. Finally, then the CJM passed the said Order.
After fighting a long judicial battle for more than three years, she was finally granted bail by the Bombay High Court on the grounds that the chargesheet had not been filed within 90 days of detention and the Additional Sessions Court Judge who ordered the extension of the time for investigation beyond the mandated 90-day period was not competent to do so as it had not been notified as a Special Court under the National Investigation Agency (NIA) Act.
She was released on a provisional cash bail of Rs. 50,000 subject to bail conditions.
Father Stan Swamy
Fr Stan Swamy (84) was a Jharkhand-based tribal rights defender who was arrested on October 8, 2020, by the anti-terror National Investigation Agency in connection with the Bhima Koregaon Maoist conspiracy case and died at a Mumbai hospital while in judicial custody in July 5, 2021, while awaiting bail. His bail applications were repeatedly rejected even though he had fully co-operated all along in the investigation and was not viewed as a flight risk or as a person who would interfere with the legal process. Father Swamy suffered from Parkinson’s disease and various other ailments.
The Ranchi home of Father Stan Swamy was raided in the morning of August 28, 2018 wherein his phones, laptops, hard discs, pen drives and other storage devices were seized. She was put behind bars despite cooperating fully during questioning that lasted a total of 15 hours over five days. The NIA arrested him from Ranchi without even seeking his custody and brought him to Mumbai the next day. He was then sent to judicial custody.The Court rejected his bail plea in October 2020 his Parkinsons disease and other old-age associated comorbidities that made him particularly vulnerable amidst the Covid-19 pandemic. It took the Court one month to grant him permission to receive a sipper to drink water and tea as his hands would shake due to Parkinsons disease making it impossible for him to hold a glass or a cup.
Prof. GN Saibaba
Dr. Saibaba, who has been a long-time defender of the rights of India’s minorities, especially Dalits, Adivasis and forest dwelling communities, against vested corporate interests, was first arrested in May 2014, and eventually sentenced to life imprisonment in March 2017, for “waging war against the state”. He was arrested from his residence in Gwyer Hall at North Campus, University of Delhi. Speaking to Scroll India, GN Saibaba recounted chilling details of his arrest.
He said that a large number of police personnel and officers from intelligence agency had gathered around his house to conduct a raid in September 2013, thereby terrorising the whole campus. After entering the house, they locked door from inside and thereafter locked GN Saibaba along with his wife and daughter in one room. In February 2014, another round of raid was conducted wherein GN Saibaba was interrogated for 4-5 hours. On May 9, 2014, he was whisked away on his way home from the examination centre as he took a break from his evaluation duty to return home for lunch break. It was only a day later when his arrest was publicly announced. Prof Saibaba claimed that the manner in which his arrest was conducted, no legal procedure was followed.
The Sessions Court at Gadchiroli on May 7, 2017 sentenced Prof. Saibaba to life imprisonmentunder the Unlawful Prevention (Activities) Act (UAPA), for alleged links with banned organisation Communist Party of India (Maoist). He had appealed against the Judgment of the Sessions Court before the Nagpur Bench of Bombay High Court, but his appeal has been pending for the last five years.
GN Saibaba, who is 90 percent disabled, suffers from ailments like hypertrophic cardiomyopathy, hypertension, paraplegia, kyphoscoliosis of the spine, anterior horn cell disease, acute pancreatitis and a cyst in the brain. It is also reported that Prof. Saibaba’s left hand is on the verge of failure and there is acute pain spreading in both his hands.
Two months ago, GN Saibaba had gone on a four-day hunger strike fighting for his fundamental right to privacy, life, liberty and bodily integrity as the jail authorities installed a CCTV camera in front of his Anda Cell without providing any valid reason for recording everything 24×7 including the use of toilet, bathing and all his body activities. He had to be hospitalised as he his health issues aggravated due to the hunger strike.
As an activist and rights defender, Dr. Saibaba has campaigned against a push to end reservations for lower castes, as well as against “encounter killings” of innocent people in Andhra Pradesh. He launched the Forum Against War on People, in response to the Indian government’s Operation Green Hunt in India’s tribal belt, which allegedly cracked down on Adivasis in the region. He organised a national campaign against the operation that reportedly led to investors pulling out. In July 2015, he told The Hindu that the authorities felt “the best way to stop me was to throw me in jail.”
Image Courtesy: hindi.moneycontrol.com
Dr. GN Saibaba hospitalised after his health deteriorates due to hunger strike
Sudha Bharadwaj released from jail
Order in Teesta Setalvad and RB Sreekumar’s bail applications likely to be passed on July 28
Fr. Stan Swamy: his legacy lives forever!