"Looks Like A Cover Up": Says Supreme Court While Reserving Judgment In NewsClick Prabir Purkayastha's Plea Challenging Arrest

The Court heard both parties at length in the SLP filed challenging his arrest for the offences under the Unlawful Activities Prevention Act, 1967 (UAPA) on the allegations of promoting fake narratives and jeopardizing national interests on behalf of foreign-funded entities. Purkayastha was arrested by the Special Cell of the Delhi Police on October 3, 2023, and is currently in Tihar Jail.

The Bench of Justice B.R. Gavai and Justice Sandeep Mehta reserved the judgment after a lengthy hearing.

Senior Advocate Kapil Sibal appeared for Purkayastha and argued that both the FIR under UAPA and the ECIR filed by the Enforcement Directorate are malafide. He contended that in the affidavit filed before the trial court, the ED had said that the grounds of arrest were informed at the time of arrest and everything was stated in the arrest memo.

He further submitted that before the High Court, ED had submitted that it is not requisite to inform the time of arrest and date of arrest in the remand application and that it only needed to be mentioned in the case diary. The grounds of arrest have not been filed in any court till today, he said.

He also referred to the provisions of CrPC and the landmark judgment of Pankaj Bansal v. Union of India (2023) which observed that the supply of grounds of arrest is mandatory for the protection of the Constitutional Rights.

Justice Gavai also asked Advocate Zoheb Hossain, the Counsel for the Delhi Police, whether the grounds of arrest were informed or not. To which, he replied that the remand application along with grounds of arrest were supplied within 24 hours.

Sibal further contended that Purkayastha was arrested on October 3 and said, “Next day morning 6 AM he is produced. Who was present? APP and a remand counsel. Remand counsel was not engaged by me…I did not engage (Legal Counsel). When I said I had not engaged him, a telephone call was made to Counsel. He said at 7 AM, inform the grounds of arrest, otherwise, how will I defend? So a WhatsApp message was sent to the counsel. Remand application was sent to counsel for the accused through WhatsApp. And other order is pronounced for remand of 7 days.”

Sibal continued and said, “First he calls his family member. A family member calls the Counsel at 6.46 am. Then I.O. calls the Counsel at 7 AM and then the remand application is sent 7.07.”

“After the order is passed, remand order is signed at 6 am...there is no discrepancy at all”, the Bench noted. It also noted that the Remand Order was passed before the Remand Application was served upon the Counsel for the Petitioner.

The Court showed the relevant part to Additional Solicitor General SV Raju, appearing for the ED, and said, "Are you now entering this line?... Just look at it."

Sibal submitted that the law makes a distinction between the remand and the grounds for arrest. “If grounds of Arrest are given, I can inform the lawyer in 24 hours, and he can defend me” he submitted. Pointing out the Order of the Delhi High Court, Sibal contended, “The Judge says that the grounds of arrest were orally told.”

Justice Mehta further asked the ASG, “Why didn't you inform his lawyer in advance? What was the big haste to pass the remand order at 6 am? The Court sits at 10 am. Who is this remand counsel? Why was the Petitioner's lawyer not informed?”

ASG Raju submitted, “The remand Counsel is the legal aid Counsel...It has been practised since the old days that the arrestee is produced in Court within 24 hours.”

Justice Mehta then asked ASG Raju, “Can the Remand be granted without telling the grounds of Arrest to the Counsel of Petitioner?”

ASG argued that the Order was not passed at 6 am; that time was written by mistake by the Judge. “We produced him at 6 am, we wanted to do early searches at 6:30 am in the morning, the time has been mistakenly written,” the ASG contended.

Justice Gavai said, “When the IO was aware that the Petitioner is being represented by a Counsel, what was the urgency? You could have given him an hour's notice.”

“It happens sometimes, My Lord” the ASG responded.

Sibal added, “The IO had the number of the Counsel.”

“This is a cover-up”, Justice Gavai said.

The ASG submitted, “Sometimes decisions are taken in haste..there is no cover-up.”

“You just can't convince us to take a different view regarding the time, Mr Raju,” Justice Mehta said.

ASG Raju submitted, “Remand Application sent to lawyer at around 7.07 AM and he later sent the objections.”

The Court said, “This is all redundant because by that time the remand Order was passed...It is like giving an opportunity of hearing after the order was passed.”

“Before the Remand Order is passed, the grounds of arrest should be communicated...Unless he is given the grounds of arrest, how can he resist the remand?” Justice Mehta said.

ASG Raju contended, “The remand application contains the grounds of arrest, and it is a substantial compliance...Assuming there was any infraction, assuming that the remand Order is bad, the subsequent remand Orders legalise.”

Justice Mehta said, “If the first remand is illegal, the subsequent remand Orders will lose their base.”

“If the arrest is bad, then my re-arrest of him subsists. Look at the type of case and gravity of offences. He is accused of offences relating to national security. If, on hypertechnical grounds, arrest is to be quashed, my right to re-arrest is reserved. It still persists”, the ASG submitted.

Justice Mehta remarked, “You haven't even filed a chargesheet in 180 days with sanction. You are leading a premier investigating agency...If you don't file a chargesheet on which cognizance can be taken, what would be the fate?”

Advocate Zoheb Hossain made further submissions on behalf of the Delhi Police and reiterated the precedent laid under Pankaj Bansal. He also referred to the Prevention of Money Laundering (the Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005.

He submitted that there is no requirement to give grounds of arrest under UAPA and PMLA in writing because they are already recording the reasons to believe in writing. He also referred to Section 50 of the CrPC.

He concluded that according to Pankaj Bansal there is no mandate in so far as communicating and writing are concerned and the judgment is peculiar to the statutory scheme of PMLA, the provision to communicate grounds of arrest cannot be applied universally to all laws under UAPA. He also referred to the judgment of Kanu Sanyal v. District Magistrate, Darjeeling.

"The maxim 'Actus Curiae neminem gravabit', which means that the act of the Court shall prejudice no one, becomes applicable in such a case.", he said.

Sibal lastly submitted that the judgment of Kanu Sanyal cannot be applied to the present case as the case relates to a habeas corpus petition and not remand. He also rebutted that whether it is PMLA or UAPA, once you have grounds for arrest, you should not withhold it. "Information cannot be withheld", he said. 

Earlier, the Purkayastha and Newsclick HR head, Amit Chakraborty, had approached the Delhi High Court, challenging the order for a 7-day Police remand, passed by the Special Judge at Patiala House Court, as null and void. However, vide Judgment dated October 13, 2023, the Delhi High Court refused to quash the order. The Court had noted that the offences fell under the UAPA, and they directly affect the stability, integrity, and sovereignty of the country. It was also observed that the offences are of the utmost importance because they have implications for national security.

On the aspect of unlawful remand of the Petitioners, the High Court had held, "It appears as of now that the grounds of arrest were indeed conveyed to the petitioner, as soon as may be, after the arrest and as such, there does not appear to be any procedural infirmity or violation of the provisions of the Section 43B of the UAPA or the Article 22(1) of the Constitution of India and as such, the arrest are in accordance with law". The High Court had also expressed its shock at the fact that the petitioner had the opportunity to meet his counsel on the evening of Oct 3, 2023, after he was arrested, however, the petition did not contain any assertion or claim that the petitioner or his counsel had raised objections to the arrest based on not being informed about the grounds for his arrest.

Recently, several retired High Court Judges among 255 eminent citizens wrote to the CJI seeking action against 'news click' and raised a vehement alarm about the alarming rise of anti-India propaganda driven by fake news and foreign-funded entities.

Cause Title: Prabir Purkayastha v. State of NCT of Delhi (Diary No. 42896-2023)