“Process has become punishment:” How Supreme Court relied on Arnab Goswami judgment to grant relief to Mohammed Zubair

The criminal justice machinery was relentlessly employed against Mohammed Zubair by opening multiple investigations against him across the country for the same set of tweets, the Supreme Court said in its order granting bail to the Alt News co-founder [Mohammed Zubair vs State of UP]..A bench of Justices DY Chandrachud, Surya Kant and AS Bopanna said that due to such such multiple first information reports, Zubair would have been 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," the order said.Hence, the Court found it fit to place heavy reliance on its November 2020 judgment in Arnab Goswami case, to club all cases and also grant bail to Zubair. In this regard the Court held that in Arnab Ranjan Goswami v. Union of India, while dealing with the issue of a multiplicity of proceedings and harassment to the accused, a two-judge bench of which Justice Dr DY Chandrachud was also a part, had 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"A fair investigative process would require that the entirety of the investigation in all the FIRs should be consolidated and entrusted to one investigating authority. The overlap in the FIRs, emanating as they do from the tweets of the petitioner, only goes to emphasize the need for a consolidated, as opposed to piece-meal investigation by a diverse set of law enforcement agencies," the judgment stated..He is trapped in a vicious cycle of the criminal process where the process has itself become the punishment.Supreme Court .The Supreme Court had last week had transferred all FIRs lodged by UP police to the Delhi special cell and had granted bail to Zubair in all of them. The Court had also granted him bail in all such cases which may be registered based on his tweets.However, a detailed judgment on the same setting out the reasons, was released by the Court only today..Besides dealing with multiplicity of proceedings, the Court in its judgment also delved into the powers of arrest by the police. It said that While police officers are vested with the power to arrest individuals at various stages of the criminal justice process, including during the course of investigation, that 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 potential witnesses, or when it is not possible to ensure their presence in court without arresting them," the judgment said.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 Court further stated.In this regard, the Court placed reliance on its judgment in Arnesh Kumar v. State of Bihar.."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 judgment underlined..Criminal law and its processes ought not to be instrumentalized as a tool of harassment.Supreme Court . The Court also refused to concede to the request of the Additional Advocate General of State of UP, Garima Parshad to restrain Zubair from tweeting. "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," the Court made it clear..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 Court said."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," the bench ruled..[Read Judgment]