Criminal Law And Processes Ought Not To Be Instrumentalized As Tool Of Harassment – SC While Granting Interim Bail to Mohd. Zubair

The Bench of Justice DY Chandrachud, Justice Surya Kant, and Justice AS Bopanna has held that criminal law and its processes ought not to be instrumentalized as a tool of harassment.

The Court observed –

"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."

The Court also held that the machinery of criminal justice has been relentlessly employed against Zubair. In this context, the Court held –

"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."

Furthermore, the Bench also opined that Zubair is trapped in a vicious cycle of the criminal process where the process has itself become the punishment.

On the contention of UP's counsel that Zubair must be barred from tweeting when he is on bail, the Court held that merely because the complaints filed against Zubair arose from posts that were made by him on social media platform, a blanket anticipatory order preventing him from tweeting cannot be made.

The Bench further also held that 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 opined.

The Court held that the Courts while imposing bail conditions must balance the liberty of the accused and necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.

The Court held that the alternate prayer adduced on Zubair should be accepted, as a consequence of which all the FIRs registered against him 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.

Thus, the Court partly allowed Zubair's petition and granted him interim bail in connection with the FIRs registered against him.

The Court directed that the SIT constituted by the Director General of Uttar Pradesh shall stand disbanded.

Zubair was arrested by the Delhi Police on June 27 for allegedly hurting religious sentiments through one of his tweets.

Multiple FIRs were lodged against him in UP -- two in Hathras and one each in Sitapur, Lakhimpur Kheri, Muzaffarnagar, Ghaziabad, and at Chandauli police station for allegedly hurting religious sentiments.