Grant of Bail: When the Investigation becomes the Punishment

Guest post by Pallavi Mohan

Recently, the Supreme Court of India granted bail to Mohd. Zubair, the co-founder of Alt News. He was arrested a month ago for allegedly posting tweets that hurt the religious sentiments of a certain community. The arrest resulted from FIRs registered in a police station in Delhi and several police stations in Uttar Pradesh under Sections 153A, 295A, 298 and 505 of IPC and Section 67 of the IT Act.

Even though a Delhi Court granted bail  in the FIR registered in Delhi, Zubair was not released from jail since requests for his police custody/remand were pending in different courts in UP. Zubair approached the Supreme Court for the quashing of the FIRs or, in the alternate, for the clubbing of the FIRs registered in UP with the FIR registered in Delhi. He also sought interim bail in the FIRs pending in  UP.

What did the Supreme Court decide about granting bail to Zubair? 

The Supreme Court granted interim bail to Zubair. It held that the Delhi Police had put him through a long investigation and that the investigation did not need his custody any longer, especially since the subject matter of the FIRs registered in UP was also similar. The Court also clarified that the interim bail would extend to any FIR registered in the future on the same subject matter.

What did the Supreme Court hold concerning the multiple FIRs pending against Zubair?

Instead of quashing the FIRs, the Supreme Court clubbed all the FIRs registered in UP with the FIR in Delhi. It held that since they all arose from the same tweets, one investigative authority could do a consolidated investigation. The Court also clarified that any FIR arising in the future from the same subject matter would also get clubbed with the FIR in Delhi. The Court disbanded the Special Investigation Team (SIT) that the UP Police had constituted, since all the FIRs registered in UP against Zubair were transferred to a Special Cell of the Delhi Police.

What did the Supreme Court observe about the power of police officers to arrest?

The Court observed that even though the police had the power to arrest, the exercise of this power cannot be unlimited. Section 41(1)(b)(ii) of the CrPC limits the power of arrest to only the following types of arrest:

• to prevent a person from committing any further offence,
• for the proper investigation of an offence,
• to prevent the arrestee from tampering with or destroying evidence,
• to prevent the arrestee from influencing or intimidating potential witnesses, or
• to ensure the arrestee’s presence in court.

The Court added that police officers need to apply their minds before exercising the power of arrest, or else it can lead to the abuse of this power. It also relied on one of its earlier judgements [Arnab Goswami v. Union of India], which reiterated the court’s role in upholding personal liberty and in ensuring investigations did not become tools of harassment.

What did the Supreme Court observe concerning imposing bail conditions on Zubair?

The prosecution requested the Court to impose a condition on Zubair, barring him from tweeting while he was out on bail. The Court denied this request. It held that bail conditions must be proportional to and have a nexus with the purpose for which the Court has imposed them. They should maintain a balance between the liberty of the accused and the need for a fair trial. In the present case, barring Zubair from tweeting while out on bail would amount to a gag order. This would be violative of both his freedom of speech and his freedom to practise his profession.