Mohammed Zubair v. State of Nct of Delhi & Ors
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.
501
2. On 20 June 2022, FIR 172 of 2022 was registered at the Special
Cell of the Delhi Police for alleged offences punishable under Sections
153-A, 295-A, 201 and 120-B of the Indian Penal Code 1860 1. The
offence under Section 35 of the Foreign Contribution (Regulation) Act
20102 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 pl ace at
the residential premises of the petitioner in Bangalore. T he legality of
the order of police remand has been challenged before the H igh 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 reg ular
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 rep ort
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 ph one used in
committing this crime and for the purpose of interr ogation of the
accused to find out other tweets/posts and larger p art 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 tri ggers religious
sentiment and he remain trending 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 Spe cial 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:
1 “IPC”
2 “FCRA”
MOHAMMED ZUBAIR v. STATE OF NCT OF DELHI & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
“
(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 operat e
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 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 t he
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;
503
(iii) FIR No 193/2021 dated 27 August 2021 registered at PS
Chandauli for offences punishable under Section 67 of the
Information Technology Act 20003;
(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 P S
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, 188, 120-B of IPC and under Section
7 of the Criminal Law Amendment Act 19324; 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 Moha madi,
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
3 “IT Act”
4 “CLA”
MOHAMMED ZUBAIR v. STATE OF NCT OF DELHI & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
(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.
7. In the meantime, arising out of the FIRs which have be en
registered at diverse Police Stations in the State of Ut tar Pradesh, the
petitioner as well as the Director of ALT News / Pravda Media Foundation
(and the company) were served with notices under Section 41A of the
Code of Criminal Procedure 19735 or, as the case may be, under Section
91 of CrPC for the production of documents such as: (i) t he balance
sheet of the last three years; (ii) the income tax returns of the D irector
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. 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;”
5 “CrPC”
505
In the alternative, the petitioner seeks a direction that the a bove
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.
9. Office Memorandum No. DG-8-94-(30) of 2022 6 has been
issued on 10 July 2022, in terms of which a Special Investigation Team7
has been constituted by the Director General of Police, Uttar Pradesh
for investigating the six FIRs which have been register ed 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 C ourt 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 taken against the petitioner on the basis
of the five FIRs which form the subject matter of these pr oceedings.
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 ar e
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
6 “OM”
7 “SIT”
MOHAMMED ZUBAIR v. STATE OF NCT OF DELHI & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
153A, 295A, 298 and 505 of IPC and Section 67 of the IT
Act;
(iii) In the FIR which has been registered at the Sp ecial 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 be en
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 befor e
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.
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
507
(v) The petitioner has a real and genuine apprehensi on 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 exercis e 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.
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 Prade sh
considering the gravity of the situation, in order to maintain
peace and harmony; and
(iv) The conduct of the petitioner in engaging in repeated act s
of tweeting would justify the invocation of criminal law.
17. The narration of facts in the prefatory part of the judg ement
would indicate that FIR No 172/2022 which has been registered on 20
June 2022 at the Special Cell of the Delhi Police invokes off ences
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.
MOHAMMED ZUBAIR v. STATE OF NCT OF DELHI & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
18. In the proceedings which reached this Court arising o ut 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 is sued 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 bai l in each of
the FIRs which forms the subject matter of these proceedi ngs, 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 pre sent 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 e ach 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 inve stigation
being conducted by the Delhi Police in FIR 172/2022.
21. In Arnab Ranjan Goswami v. Union of India,8 while dealing
with the 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
8 (2020) 14 SCC 12
509
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 being chilled by a threat of reprisal. The exercise of
that fundamental right is not absolute and is answerable to the
legal regime enacted with reference to the provisions of Art icle
19(2). But to allow a journalist to be subjected to multiple
complaints and to the pursuit of remedies traversin g
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 t hat
one cannot exist without the other. Free citizens cannot exist when
the news media is chained to adhere to one position.”
(emphasis supplied)
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 la w 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 crimi nal
law on the one hand and the need, on the other, of ensu ring
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, o n 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.
MOHAMMED ZUBAIR v. STATE OF NCT OF DELHI & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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 li ne of
defense against the deprivation of the liberty of cit izens.
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 sta ge is that the
investigation by the Special Cell of the Delhi Polic e in FIR No 172/
2022 pertains to offences of a cognate nature to thos e which have
been invoked in the FIRs which have been lodged before the Police
Stations in Uttar Pradesh. Before this court can emba rk on an enquiry
as to whether the FIRs should be quashed, it is appr opriate that the
petitioner pursues his remedies in accordance with th e provisions of
Article 226 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 consolidate d and entrusted to
one investigating authority. The overlap in the FIRs, emanating as they
do from the tweets of the petitioner, only goes to emphasi ze 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 i s
advised to seek the quashing of the FIRs before the High Court of Delhi.
All proceedings in connection with the FIRs shall lie before t he High
Court of Delhi for such remedies as are available in law. The direction
511
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 twee ts which have
been put out by the petitioner and to any future FIRs which ma y be
registered against him on the same subject matter.
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 reg istered 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 agains t the petitioner.
Despite the fact that the same tweets allegedly gave r ise to similar
offences in the diverse FIRs mentioned above, the peti tioner 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 di stricts spanning two
states for the purposes of investigation, and defend him self 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 punis hment. It also
appears that certain dormant FIRs from 2021 were activated as certain
new FIRs were registered, thereby compounding the difficu lties faced
by the petitioner.
26. Police officers are vested with the power to arrest individuals
at various stages of the criminal justice process, incl uding 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 potentia l
witnesses, or when it is not possible to ensure their prese nce in court
without arresting them.
27. Police officers have a duty to apply their mind to th e case
before them and ensure that the condition(s) in Section 41 are met before
MOHAMMED ZUBAIR v. STATE OF NCT OF DELHI & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
they conduct an arrest. This Court has time and again, reiter ated the
importance of doing so, including in Arnesh Kumarv.State of Bihar,9
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 exer cised 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.
29. The counsel for the State of Uttar Pradesh attempte d 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 im pose 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 trial 10 or to prevent the accused from
committing an offence similar to the one he is suspected of11, or in the
interest of justice12. 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
9 (2014) 8 SCC 273
10 Sections 438(2) and 437 (3)(c) of CrPC
11 Section 437(3)(b) of CrPC
12 Section 437 of CrPC
513
and to advance a fair trial. 13 The bail conditions imposed by the Court
must not only have a nexus to the purpose that they seek to serve b ut
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 Noordin Lokhandwalla v. State of
Maharashtra14, 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 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 cour se of
investigation and eventually to ensure a fair trial. The conditions
which are imposed by the court must bear a proporti onal
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 ma de. A
blanket order directing the petitioner to not express his opinion - an opinion
that he is rightfully entitled to hold as an active partic ipating 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 ag e of
morphed images, clickbait, and tailored videos. Passing an order restricting
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
MOHAMMED ZUBAIR v. STATE OF NCT OF DELHI & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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, sub ject
to his filing a personal release bond in the amount of Rs
20,000 in connection with the following FIRs:
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 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;
515
(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 st and
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 t he
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 t he
Patiala House 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.
Divya Pandey Writ petition partly allowed.
(Assisted by : Roopanshi Virang, LCRA)
MOHAMMED ZUBAIR v. STATE OF NCT OF DELHI & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]