ARNAB RANJAN GOSWAMI versus UNION OF INDIA AND ORS.
[2020] 8 S.C.R. 222, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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ARNAB RANJAN GOSWAMI
v.
UNION OF INDIA AND ORS.
(Writ Petition (Criminal) No. 130 of 2020)
MAY 19, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Constitution of India:
Arts. 19(1)(a), 19(2) and 32 – Writ Petition – Seeking quashing
of various FIRs filed under the provisions of ss. 153, 153A, 153B,
295A, 298, 500, 504 and 506 IPC against a media journalist –
Held: All the FIRs or complaints have been lodged in diverse
jurisdictions arising out of same cause of action i.e. broadcast of a
programme – Journalistic freedom is protected by Art. 19(1)(a) –
The right of speech and expression of a journalist u/Art. 19(1)(a) is
no higher than such right of a citizen – It is amenable to restriction
u/Art. 19(2) – Petitioner is not immune from investigation in FIR –
However, the reasonable restriction on fundamental right must
comport with the proportionality standard i.e. the measure adopted
must be the least restrictive to effectively achieve the legitimate aim
– Subjecting an individual to numerous proceedings in different
jurisdictions on the basis of same cause of action cannot be said to
be least restrictive – Therefore, except one FIR at Mumbai, all other
FIRs which are in respect of the same incident are quashed as they
constitute a clear abuse of process of law – The writ petition is not
entertained in respect of relief of quashing the FIR at Mumbai as
efficacious remedies are available under Cr. P.C. including
the
remedy before High Court u/s. 482 Cr. P.C.
Investigation:
Transfer of investigation – From local police to CBI – Held:
Transfer of investigation to CBI is not a matter of routine – It is an
‘extraordinary power’ to be used ‘sparingly’ and ‘in exceptional
circumstances’ – Mere allegations against police do not constitute
a sufficient basis for transfer – It must be ‘imperative’ to retain
public confidence in the impartial working of the State agencies –
Allegation by the person under investigation regarding mode,
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manner and line of interrogation and unsubstantiated allegation of
a conflict of interest against police conducting investigation, cannot
be the basis to transfer the investigation.
Code of Criminal Procedure, 1973:
s. 199 – Prosecution for defamation – Held: In respect of
defamation neither can an FIR be filed nor can a direction be issued
u/s. 156 (3) Cr. P.C. – It is only a complaint which can be instituted
by the aggrieved person.
Disposing of Writ Petitions, the Court
HELD: 1.1. The fundamental basis on which the
jurisdiction of this Court has been invoked under Article 32 is
the filing of multiple FIRs and complaints in various States arising
from the same cause of action. All the FIRs or complaints which
have been lodged in diverse jurisdictions arise out of one and
the same incident - the broadcast by the petitioner on 21 April
2020 on R Bharat. The broadcast is the foundation of the
allegation that offences have been committed under the provisions
of Sections 153, 153A, 153B, 295A, 298, 500, 504 and 506 of the
IPC. The several complaints are worded in identical terms and
leave no manner of doubt that an identity of cause of action
underlies the allegations leveled against the petitioner on the
basis of the programme which was broadcast on 21 April 2020.
Moreover, the language, content and sequencing of paragraphs
and their numbering is identical. [Paras 28 and 31][252-C; 256-
A-C]
1.2 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 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). Country’s freedoms will rest safe as long as journalists
can speak 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
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provisions of Article 19(2). But to allow a journalist to be subjected
to multiple complaints and to the pursuit of remedies traversing
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.
The right of a journalist under Article 19(1)(a) is no higher than
the right of the citizen to speak and express. But as a society one
must never forget that one cannot exist without the other. Free
citizens cannot exist when the news media is chained to adhere
to one position. [Para 32][256-E-G; 257-A]
1.3 It is firmly established that any reasonable restriction
on fundamental rights must comport with the proportionality
standard, of which one component is that the measure adopted
must be the least restrictive measure to effectively achieve the
legitimate state aim. Subjecting an individual to numerous
proceedings arising in different jurisdictions on the basis of the
same cause of action cannot be accepted as the least restrictive
and effective method of achieving the legitimate state aim in
prosecuting crime. The manner in which the petitioner has been
subjected to numerous FIRs in several States, besides the Union
Territories of Jammu and Kashmir on
the basis of identical
allegations arising out of the same television show would leave
no manner of doubt that the intervention of this Court is necessary
to protect the rights of the petitioner as a citizen and as a journalist
to fair treatment (guaranteed by Article 14) and the liberty to
conduct an independent portrayal of views. In such a situation, to
require the petitioner to approach the respective High Courts
having jurisdiction for quashing would result into a multiplicity of
proceedings and unnecessary harassment to the petitioner, who
is a journalist. [Para 33][257-B-E]
1.4 However, the petitioner, in the exercise of his right
under Article 19(1)(a), is not immune from an investigation into
the FIR which has been transferred from Police Station Sadar,
District Nagpur City to NM Joshi Marg Police Station in Mumbai.
This balance has to be drawn between the exercise of a
fundamental right under Article 19(1)(a) and the investigation
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for an offence under the CrPC. All other FIRs in respect of the
same incident constitute a clear abuse of process and must be
quashed.  Leaving open, however, the investigation in respect of
the FIR 238 of 2020 dated 22 April 2020 transferred from the
Police Station Sadar, District Nagpur City to NM Joshi Marg
Police Station in Mumbai. [Paras 31 and 34][256-D; 257-F-H]
TT Antony v State of Kerala  (2001) 6 SCC 181 : [2001]
3 SCR 942; Upkar Singh v Ved Prakash (2004) 13 SCC
292; Ram Lal Narang v State (Delhi Administration)
(1979) 2 SCC 322 : [1979] 2 SCR 923; Kari Choudhary
v Mst. Sita Devi (2002) 1 SCC 714 : [2001] 5 Suppl.
SCR 588; State of Bihar v JAC Saldanha (1980) 1 SCC
554 : [1980] 2 SCR 16; Babubhai v State of Gujarat
(2010) 12 SCC 254 : [2010] 10 SCR 651 – relied on.
Chirra Shivraj v State of Andhra Pradesh (2010) 14
SCC 444 : [2010] 15 SCR 673; Chirag M Pathak v
Dollyben Kantilal Patel  (2018) 1 SCC 330 : [2017] 14
SCR 424 – referred to.
2. Section 199 of the CrPC stipulates prosecution for
defamation. In case of criminal defamation, neither can an FIR
be filed nor can a direction be issued under Section 156 (3) of the
CrPC and it is only a complaint which can be instituted by a person
aggrieved. Therefore, the FIR which is under investigation at
the NM Joshi Marg Police Station in Mumbai does not and cannot
cover any alleged act of criminal defamation. [Paras 45, 46
and 47][206-E; 264-E; 265-D-E]
3.1 It would be inappropriate for the court to
exercise its
jurisdiction under Article 32 of the Constitution for the purpose
of quashing FIR 164 of 2020 under investigation at the NM Joshi
Marg Police Station in Mumbai. The checks and balances to
ensure the protection of the petitioner’s liberty are governed by
the CrPC. Despite the liberty being granted by this Court to the
petitioner on 24 April 2020 by its interim order, it is an admitted
position that the petitioner did not pursue available remedies in
the law, but sought instead to invoke the jurisdiction of this Court.
Whether the allegations contained in the FIR do or do not make
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out any offence as alleged will not be decided in pursuance of the
jurisdiction of this Court under Article 32, to quash the FIR. The
petitioner must be relegated to the pursuit of the remedies
available under the CrPC. The petitioner has an equally
efficacious remedy available before the High Court. [Para 49][266-
G-H; 267-A-B]
3.2 It should not be construed that a petition under Article
32 is not maintainable. But when the High Court has the power
under Section 482, there is no reason to by-pass the procedure
under the CrPC and there is no exceptional grounds or reasons
to entertain the petition under Article 32. There is a clear
distinction between the maintainability of a petition and whether
it should be entertained. In a situation like that in the present
case, this Court would not like to entertain the petition under
Article 32 for the relief of quashing the FIR being investigated at
the NM Joshi Police Station in Mumbai which can be considered
by the High Court. Therefore, the petitioner must be relegated
to avail of the remedies which are available under the CrPC before
the competent court including the High Court. [Para 49][267-C-
D]
4.1 The transfer of an investigation to the CBI is not a
matter of routine. This is an “extraordinary power” to be used
“sparingly” and “in exceptional circumstances”. One factor that
courts may consider is that such transfer is “imperative” to retain
“public confidence in the
impartial working of the State agencies.”
However, mere allegations against the police do not constitute a
sufficient basis to transfer the investigation. The accused “does
not have a say in the matter of appointment of investigating
agency”.[Paras 36 and 37][258-D; 259-G; 260-A-B]
State of West Bengal v Committee for Protection of
Democratic Rights, West Bengal (2010) 3 SCC 571 :
[2010] 2 SCR 979 – followed.
K V Rajendran v Superintendent of Police, CBCID South
Zone, Chennai (2013) 12 SCC 480 : [2013] 9 SCR
199; Romila Thapar v Union of India (2018) 10 SCC
753 : [2018] 11 SCR 951; Narmada Bai v State of
Gujarat (2011) 5 SCC 79 : [2011] 5 SCR 729; Sanjiv
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Rajendra Bhatt v Union of India (2016) 1 SCC 1 :
[2015] 12 SCR 498; E Sivakumar v Union of India
(2018) 7 SCC 365 : [2018] 6 SCR 522; Divine Retreat
Centre v State of Kerala (2008) 3 SCC 542 : [2008] 4
SCR 701 – relied on.
4.2 The petitioner had requested for and consented to the
transfer of the investigation of the FIR from the Police Station
Sadar, District Nagpur City to the NM Joshi Marg Police Station
in Mumbai. He did so because an earlier FIR lodged by him at
that police station was under investigation. The petitioner now
seeks to pre-empt an investigation by the Mumbai police. The
basis on which the petitioner seeks to achieve this is untenable.
An accused person does not have a choice in regard to the mode
or manner in which the investigation should be carried out or in
regard to the investigating agency. The line of interrogation either
of the petitioner or of the CFO cannot be controlled or dictated
by the persons under investigation/interrogation. So long as the
investigation does not violate any provision of law, the
investigation agency is vested with the discretion in directing
the course of investigation, which includes determining the nature
of the questions and the manner of interrogation. The
investigating agency is entitled to decide “the venue, the timings
and the questions and the manner of putting such questions”
during the course of the investigation. Courts must refrain from
passing comments on an ongoing investigation to extend
to the
investigating agencies the requisite liberty and protection in
conducting a fair, transparent and just investigation. The length
of the investigation or the nature of the questions addressed to
the petitioner and the CFO during the interrogation cannot weigh
in transferring the investigation. The investigating agency is
entitled to determine the nature of the questions and the period
of questioning. The Petitioner was summoned for investigation
on one day. [Paras 39, 40 and 41][261-B-D; 261-G-H; 262-A-B;
262-E-F]
P. Chidambaram v Directorate of Enforcement (2019)
9 SCC 24 : [2019] 12 SCR 172; State of Bihar v P P
Sharma (1992) Suppl. 1 SCC 222 : [1991] 2 SCR 1;
Dukhishyam Benupani, Asst. Director, Enforcement
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Directorate (FERA) v Arun Kumar Bajoria (1998) 1 SCC
52 : [1997] 5 Suppl. SCR 566; Director, Central Bureau
of Investigation v Niyamavedi represented by its Member
K Nandini, Advocate (1995) 3 SCC 601 : [1995] 3 SCR
196 – relied on.
4.3 The allegation of the Petitioner that there is a conflict
of interest arising out of the criticism by him of the alleged  failure
of the State Government to adequately probe the incident at
Palghar is not valid. The investigation of the Palghar incident is
beyond  the territorial jurisdiction of the Mumbai police.  The
petitioner was interrogated on 27 April 2020. The allegations
which he leveled against the Commissioner of Police, Mumbai
were in the course of a television programme on 28 April 2020
relayed on R Bharat at 1900 hrs. No transfer of investigation can
be ordered “merely because a party has levelled some allegations
against the local police.” Accordingly, leveling such allegations
would not by itself constitute a sufficient ground for the transfer
of the investigation. [Paras 41 and 42][262-G; 263-A-C]
4.4 The interview given by the complainant to a
representative of R Bharat does not furnish a valid basis in law
for an inference that the investigation is tainted or as warranting
a transfer of investigation to the CBI. The Government of
Maharashtra has moved an application before this Court (affirmed
by the DCP, Zone-3) seeking appropriate directions to insulate
the
investigating agency “from any pressure, threat or coercion
from the petitioner” and to enable it to discharge its lawful duties
in a fair and transparent manner. Based on the views tweeted by
R  Bharat on social media, it is the Maharashtra police which is
now claiming a restraining order against the petitioner. The
investigating agency has placed on the record what it believes is
an attempt by the petitioner to discredit the investigation by
taking recourse to the social media and by utilizing the news
channels which he operates. Social media has become an
overarching presence in society. To accept the tweets by the
petitioner and the interview by the complainant as a justification
to displace a lawfully constituted investigation agency of its
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jurisdiction and duty to investigate would have far-reaching
consequences for the federal structure. [Para 43][263-C-G]
4.5 There is no reason that warrants a transfer of the
investigation to the CBI. An individual under investigation has a
legitimate expectation of a fair process which accords with law.
The displeasure of an accused person about the manner in which
the investigation proceeds or an unsubstantiated allegation (as
in the present case) of a conflict of interest against the police
conducting the investigation must not derail the legitimate course
of law and warrant the invocation of the extraordinary power of
this Court to transfer an investigation to the CBI. Courts assume
the extraordinary jurisdiction to transfer an investigation in
exceptional situations to ensure that the sanctity of the
administration of criminal justice is preserved. While no inflexible
guidelines are laid down, the notion that such a transfer is an
“extraordinary power” to be used “sparingly” and “in exceptional
circumstances” comports with the idea that routine transfers
would belie not just public confidence in the normal course of law
but also render meaningless the extraordinary situations that
warrant the exercise of the power to transfer the investigation.
Having balanced and considered the material on record as well
as the averments of and submissions urged by the petitioner, no
case of the nature which falls within the ambit of the tests
enunciated in the
precedents of this Court has been established
for the transfer of the investigation. [Para 44][263-G-H; 264-A-
D]
Subramanian Swamy v Union of India, Ministry of Law
(2016) 7 SCC 221 : [2016] 3 SCR 865 – relied on.
5. There is no reason to entertain the subsequent Writ
Petition which has been filed by the petitioner in respect of the
FIR lodged at Pydhonie Police Station (FIR 137 of 2020 dated 2
May 2020). The basis on which the jurisdiction of this Court was
invoked in the first Writ Petition – the filing of multiple FIRs in
various states – is absent in the subsequent Writ Petition (Crl.)
Diary No 11189 of 2020. The petitioner would be at liberty to
pursue his remedies under the law in respect of the FIR. Any
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recourse to such a remedy shall be considered on its own merits
by the competent court. [Para 52][268-B-D]
Case Law Reference
[2001] 3 SCR 942
relied on
Para 28
(2004) 13 SCC 292
relied on
Para 29
[1979] 2 SCR 923
relied on
Para 29
[2001] 5 Suppl. SCR 588
relied on
Para 29
[1980] 2 SCR 16
relied on
Para 29
[2010] 10 SCR 651
relied on
Para 30
[2010] 15 SCR 673
referred to
Para 30
[2017] 14 SCR 424
referred to
Para 30
[2010] 2 SCR 979
followed
Para 36
[2013] 9 SCR 199
relied on
Para 36
[2018] 11 SCR 951
relied on
Para 37
[2011] 5 SCR 729
relied on
Para 37
[2015] 12 SCR 498
relied on
Para 37
[2018] 6 SCR 522
relied on
Para 37
[2008] 4 SCR 701
relied on
Para 37
[2019] 12 SCR 172
relied on
Para 39
[1991] 2 SCR 1
relied on
Para 39
[1997] 5 Suppl. SCR 566
relied on
Para 39
[1995] 3 SCR 196
relied on
Para 40
[2016] 3 SCR 865
relied on
Para 46
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 130 of 2020.
Under Article 32 of the Constitution of India
With
W.P. (Crl.) Diary No. 11189 of 2020.
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Tushar Mehta, SG, S.C. Verma, Adv. Gen., Manoj Kumar Singh,
Ashok Basoya, AAGs, Harish Salve, Siddharth Bhatnagar, Kapil Sibal,
Dr. Abhishek Manu Singhvi, Dr. Manish Singhvi, K.V. Vishwanathan,
Sr. Advs., Saket Shukla, Mrinal Ojha, Ms. Malvika Trivedi, Vasanth
Rajasekaran, Debarshi Dutta, Rajat Pradhan, Ishaan Chhaya, Harshul
Singh, Ms. Reshma Ravipati, Ms. Pragya Baghel, Rahul Chitnis, Sachin
Patil, Varun K. Chopra, Adit Pujari, Sumeer Sodhi, Ashok Basoya, Varun
Tankha, Varun Chopra, Aman Nandrajog, Sandeep Jha, Sumeer Sodhi,
S. Hariharan, Ms. Jaikriti Sinh Jadeja, Reepak Kansal, Harisha S.R.,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
Writ Petition (Crl) No 130 of 2020
1. The petitioner is the Editor-in-Chief of an English television
news channel, Republic TV. He is also the Managing Director of ARG
Outlier Media Asianet News Private Limited which owns and operates
a Hindi television news channel by the name of R Bharat. The petitioner
anchors news shows on both channels.
2. On 16 April 2020, a broadcast took place on Republic TV. This
was followed by a broadcast on R Bharat on 21 April 2020. These
broadcasts led to the lodging of multiple First Information Reports1 and
criminal complaints against the petitioner. They have been lodged in the
States of Maharashtra, Chhattisgarh, Rajasthan, Madhya Pradesh,
Telangana and Jharkhand as well as in the Union Territories of Jammu
and Kashmir. In
the State of Maharashtra, an FIR was lodged at Police
Station Sadar, District Nagpur City. The details of this FIR are:
“Maharashtra
FIR No. 238 of 2020, dated 22 April 2020, registered at Police
Station Sadar, District Nagpur City, Maharashtra, under Sections
153, 153-A, 153-B,295-A, 298, 500, 504(2), 506, 120-B and 117
of the Indian Penal Code 1860.”
Apart from the above FIR, as many as fourteen other FIRs and
complaints have been lodged against the petitioner, of which the details
are extracted below:
1 “FIRs”
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“• FIR No. 245 of 2020, dated 22 April 2020, registered at Police
Station Supela, District Durg, Chhattisgarh, under sections 153-
A, 295-A and 505 (2) of the Indian Penal Code 1860.
• FIR No. 180 of 2020, dated 23 April 2020, registered at Police
Station Bhilal Nagar, District Durg, Chhattisgarh, under sections
153- A, 188, 290 and 505 (1) of the Indian Penal Code 1860.
• FIR No. 176 of 2020, dated 22 April 2020, registered at Police
Station Civil Lines, District Raipur, Chhattisgarh, under sections
153-A, 295-A and 505 (2) of the Indian Penal Code 1860.
• Complaint dated 21 April 2020 by District Congress Committee
– Antagrah, Kanker, Chhattisgarh.
• Complaint dated 22 April 2020 by Pritam Deshmukh (adv.), Durg
District Congress Committee – to SHO city PS Durg,
Chhattisgarh.
• Complaint dated 22 April 2020 by Suraj Singh Thakur, State
Vice President, Indian Youth Congress- to Sr. Police Officer, Chirag
Nagar, Ghatkopar East, Mumbai.
• Complaint dated 22 April 2020 – Pankaj Prajapti (party worker
of INC and ex-spokesperson NSUI) through counsel Anshuman
Shrivastavas – Superintendent of Police, Crime Branch, Indore,
Madhya Pradesh.
• Complaint dated 22 April 2020 – Balram Jakhad (adv.) – to PS
Shyam Nagar –u/s 153, 188, 505, 120B in Jaipur.
• Complaint by Jaswant Gujar – to SHO Bajaj Nagar PS, Jaipur.
• Complaint dated 22 April 2020 by Fundurdihari, Ambikapur,
District Sarguja, Chhattisgarh – Rajesh Dubey,
Chhattisgarh State
Congress Committee – to SHO Gandhi Nagar, Ambikapur – u/s
153, 153A, 153B, 504, 505.
• Complaint dated 22 April 2020 in Telangana by Anil Kumar Yadav,
State President of Telangana Youth Congress – to SHO Hussaini
Alam – u/s 117, 120B, 153, 153A, 295A, 298, 500, 504, 505 and
506. Also 66A of the IT Act.
• Complaint dated 23 April 2020 by Anuj Mishra before Kotwali,
Urai, Tulsi Nagar.
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• Complaint dated 22 April 2020 by Kumar Raja, VP, Youth
Congress, Jharkhand Congress Committee before Kotwali Police
Station, Upper Bazar, Ranchi.
• Complaint dated 22 April 2020 by Madhya Pradesh Youth
Congress.”
3. The genesis of the FIRs and complaints originates in the
broadcasts on Republic TV on 16 April 2020 and R Bharat on 21 April
2020 in relation to an incident which took place in Gadchinchle village of
Palghar district in Maharashtra. During the course of the incident which
took place on 16 April 2020, three persons including two sadhus were
brutally killed by a mob, allegedly in the presence of the police and forest
guard personnel. The incident was widely reported in the print and
electronic media. The petition states that a video recording of the incident
is available in the public domain. In his news show titled “Poochta hai
Bharat” on 21 April 2020 on R Bharat, the petitioner claims to have
raised issues in relation to the allegedly tardy investigation of the incident.
The segment of the news broadcast is available for public viewing online
at:
https://www.youtube.com/watch?v=C2i4MMpKu9I
4. The viewpoint which the petitioner claims to have put across
during the course of the broadcast, is described in the following extract
from the Writ Petition which has been instituted by the petitioner before
this Court under Article 32 of the Indian Constitution:
“A review of the above debate would show that its thrust was to
question the tardy
investigation, inconsistent versions of the
authorities and the administration and the State Government’s
silence on the Palghar incident given that the unfortunate incident
happened in Maharashtra which is presently under rule of an
alliance government jointly formed by Shiv Sena, the Congress
and the Nationalist Congress Party. The debate highlighted the
manner in which the incident was being portrayed by the authorities,
including the glaring fact that the incident occurred in the presence
of numerous police officials which fact was initially suppressed.”
5. The petitioner claims that following the broadcast, “a well-
coordinated, widespread, vindictive and malicious campaign” was
launched against him by the Indian National Congress2 and its activists.
2 “INC”
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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The campaign, he alleges, was carried out online through news reports
and tweets indicating that members of the INC had filed multiple
complaints simultaneously against the petitioner before various police
stations seeking the registration of FIRs and an investigation into offences
alleged to have been committed by him under Sections 153, 153A, 153B
295A, 298, 500, 504, 506 and 120B of the Indian Penal Code 18603. A
campaign for the arrest of the petitioner was allegedly launched on social
media, using the hashtag:
#ArrestAntiIndiaArnab
6. The petitioner submitted, in the course of his pleadings, that all
the complaints and FIRs have incidentally been lodged in States where
the governments which were formed owe allegiance to the INC and
that he believes that the law enforcement machinery was being set in
motion with an ulterior motive. To substantiate this, the petitioner refers
to an incident which allegedly took place on 23 April 2020, while he was
returning by car from his studio at Worli, Mumbai  accompanied by his
spouse between 12:30 and 1:00 am. His car was confronted by two
individuals on a motor-cycle. Confronted by the security personnel of
the petitioner, the two individuals on the motor-cycle are alleged to have
disclosed their identity as members of the INC. An FIR was registered
at the behest of the petitioner at NM Joshi Marg Police Station in Mumbai
in which the details of the alleged attack on him
have been set out.
7. The petitioner denies that he has propagated views of a
communal nature in the course of the news broadcasts which gave rise
to the institution of numerous complaints. Asserting his fundamental right
to the freedom of speech and expression under Article 19(1)(a) of the
Constitution, the petitioner has moved this Court under Article 32 for the
protection of those rights. The reliefs which have been sought are:
(i)
Quashing all the complaints and FIRs lodged against the
petitioner in multiple States and Union Territories;
(ii)
A writ direction that no cognisance should be taken of any
complaint or FIR on the basis of the cause of action which
forms the basis of the complaints and FIRs which have led
to the present writ proceedings; and
3 “IPC”
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(iii) A direction to the Union Government to provide adequate
safety and security to the petitioner and his family as well as
to his colleagues at Republic TV and R Bharat.
8. While entertaining the Writ Petition on 24 April 2020, this Court
heard submissions by Senior Counsel: on behalf of the petitioner by
Mr Mukul Rohatgi and Mr Siddhartha Bhatnagar; on behalf of the State
of Maharashtra by Mr Kapil Sibal; on behalf of the State of Chhattisgarh
by Mr Vivek Tankha; and on behalf of the State of Rajasthan by
Dr Abhishek Manu Singhvi. Having heard the rival submissions, this
Court noted in its interim order that the order which it intended to pass
should strike a balance between the following governing principles:
(i)
The need to ensure that the criminal process does not assume
the character of a vexatious exercise by the institution of
multifarious complaints founded on the same cause in
multiple States;
(ii)
The need for the law to protect journalistic freedom within
the ambit of Article 19(1)(a) of the Constitution;
(iii)
The requirement that recourse be taken to the remedies
available to every citizen in accordance with the Code of
Criminal Procedure 1973;
(iv)
Ensuring that in order to enable the citizen to pursue legal
remedies, a protection of personal liberty against coercive
steps be granted for a limited duration in the meantime;
(v)
The investigation of an FIR should be allowed to take place
in accordance with law without this Court deploying
its
jurisdiction under Article 32 to obstruct the due process of
law; and
(vi)
Assuaging the apprehension of the petitioner of a threat to
his safety and the safety of his business establishment.
9. Learned Senior Counsel appearing on behalf of the petitioner
apprised this Court, on instructions, that the petitioner had no objection
to the transfer of FIR 238 of 2020 which was lodged at Police Station
Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai
for the purpose of investigation. Mr Kapil Sibal, learned Senior Counsel
appearing on behalf of the State of Maharashtra similarly had no objection
to this course of action. This is recorded specifically in the order passed
by this Court on 24 April 2020 in the following terms:
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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“9 The Court was apprised by Mr Mukul Rohatgi, learned senior
counsel, on seeking instructions, that the petitioner would have no
objection if the FIR which has been lodged at Nagpur is transferred
for the purpose of investigation to the N M Joshi Marg Police
Station, Mumbai, where the petitioner has lodged an FIR on 23
April 2020. The FIR by the petitioner is in relation to an incident
which took place at midnight, during the course of which, he and
his spouse were obstructed by two persons and an alleged to
have been subjected to an assault, while returning home from the
studio.
10 Mr Sibal has indicated that there should be no objection to the
transfer of the FIR which has been lodged at Nagpur to Mumbai.”
Consequently, this Court, by its interim order:
(i)
Transferred FIR 238 of 2020 lodged at Police Station Sadar,
District Nagpur City to the NM Joshi Marg Police Station in
Mumbai with a clarification that the petitioner shall cooperate
in the investigation;
(ii)
Stayed further proceedings arising out of the complaints and
FIRs other than the one which had been instituted at Police
Station Sadar, District Nagpur City and stood transferred;
(iii) Allowed the investigation to proceed in FIR 238 of 2020 which
was transferred from Police Station Sadar, District Nagpur
City to the NM Joshi Marg Police Station in Mumbai;
(iv) Protected the petitioner against coercive steps arising out of
and in relation to the above
FIR, in relation to the telecast
dated 21 April 2020;
(v)
Granted liberty to the petitioner to move an application for
anticipatory bail before the Bombay High Court under Section
438 of the Code of Criminal Procedure 19734 and to pursue
such other remedies as are available in law. It was clarified
that any such application shall be considered on its own merits
by the competent court;
(vi) Stayed further proceedings in respect of any other FIR, or
as the case may be, criminal complaints which have been
4 “CrPC”
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filed or which may thereafter be filed with respect to the
same incident; and
(vii) Directed the Commissioner of Police5, Mumbai to consider
the request of the petitioner for being provided with security
at his residence and at the business establishment.
10. Following the interim order of this Court, several interim
applications were filed in the course of the proceedings. The details of
each of the IAs are necessary to facilitate our eventual analysis of the
case:
IA No 48585 of 2020: filed by the petitioner
11. The petitioner submits that:
(i)
The Mumbai police is not conducting a fair and impartial
investigation in relation to FIR 238 of 20206 which has been
transferred from Police Station Sadar, District Nagpur City
to NM Joshi Marg Police Station in Mumbai for investigation;
(ii)
The manner in which the investigation has been conducted
by the Mumbai police leads to the “inescapable conclusion”
that the authorities “harbor grave malice and mala fide
intention” against the petitioner;
(iii)
The investigation is politically motivated and has been
conducted with “a pre-determined and pre-meditated
objective” to arm-twist, harass and humiliate the petitioner
and his family and to diminish his right to free speech and
expression under Article 19(1)(a) of the Constitution;
(iv)
Since the petitioner’s news channel is questioning the
complicity of the Maharashtra police in the Palghar incident
and the police fall under the administration and control of
the
State government (ruled by an alliance government of
the INC), there is a clear conflict of interest in the investigation
by the Mumbai police; and
(v)
It is necessary that the investigation is stayed to prevent any
miscarriage of justice. These apprehensions are sought to
be established on the basis of the following averments:
5 “CP”
6 Renumbered as FIR 164 of 2020 at NM Joshi Marg Police Station in Mumbai.
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(a) On 25 April 2020, the petitioner was served with a notice
under Section 41(a) of the Code of Criminal Procedure
19737 summoning him to the police station on 26 April
2020;
(b) On 26 April 2020, the petitioner expressed his
willingness to appear before the Investigating Officer8
through Video Conferencing9;
(c) Rejecting the above request, the IO called upon the
petitioner by a summons dated 26 April 2020 to be
physically present at NM Joshi Marg Police Station in
Mumbai on 27 April 2020;
(d) On 27 April 2020, the petitioner was questioned without
a break for nearly twelve hours during which he was
not allowed to keep possession of his mobile phone or
to wear his personal fitness band;
(e) During the course of the investigation, the petitioner was
informed by the Mumbai police that the complainant Dr
Nitin Kashinath Raut, who is a Cabinet Minister in the
Maharashtra government and a working President of
the INC, had filed a supplementary statement indicating
when he had been provided with a clip of the broadcast;
(f) A substantial bulk of the questions during the investigation
was in relation to a small segment comprising fifteen
seconds out of a total broadcast of fifty-two minutes;
(g) During the course of the investigation, the petitioner was
asked by the IO whether he had defamed or maligned
the President of the INC in the course of the broadcast
on 21 April 2020;
(h) FIR 164 of 2020 is not based on a complaint
by the
President of the INC and hence, it is inconceivable as
to how the IO could have questioned the petitioner on
an alleged act of defamation which he, in any event,
denies;
7 “CrPC”
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(i) Tweets made on the social media by members of the
INC during and around the time of the investigation
indicate that the Mumbai police was relying on real time
information during the course of the interrogation by
“their political masters”;
(j) Questions posed to the petitioner during the course of
the investigation have no nexus to FIR 164 of 2020.
The questions which were posed included the following:
“(i) Corporate structure of the Petitioner’s company,
ARG Outlier Media Asianet Private Limited (“ARG”)
including its board of directors. ARG owns and operates
Republic TV and R. Bharat.
(ii) Process of obtaining broadcasting licenses by the
news channels of the Petitioner.
(iii) Location of archives of Petitioner’s news channels;
whether the Hindi channel of the Petitioner, R. Bharat
is based outside or inside Maharashtra.
(iv) Does the Petitioner’s news channel send recordings
of news reports to the Central Government (this
question was asked multiple times.)
(v) Process of selecting panelists for debates aired on
Petitioner’s news channels. Are the panelists paid
remuneration by the Petitioner’s news channel for this
purpose.
(vi) Does the Petitioner own the house in which he is
currently staying or pays rent.”
(k)
The complainant, Dr Nitin Kashinath Raut was interviewed
on 29 April 2020 by a reporter of Republic TV in regard to
the contradictions between the statement in the FIR and his
subsequent supplementary statement as to the place where
he had
watched the video clip. In response to the query
posed to him in the interview, the complainant stated:
“There is no need to be confused over this point,
whatever I have mentioned in my statement, it is true.
After watching at home, I also got a clip, which was
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sent to me from my party office. When I say that I
watched it earlier, it’s the truth, and later I watched a
clip, which is mentioned in the complaint that I filed in
the police station. If you have read Article 19(1) of the
Constitution, where freedom of expression and thought
is mentioned but nowhere does it allow crossing the limits
or making extreme comments. There are restrictions
mentioned and Mr Arnab has violated them. I have a lot
of respect of Mr Arnab, he’s a senior journalist, and he
has handled the media well till now but what happened
lately. I don’t know. During his speech, he forgot that
he’s a citizen of this country and a citizen has to abide
by the Constitution. I have always supported freedom
of expression for journalists but the question is, these
comments involve a clear attempt to incite a riot. Arnab
was questioned for along during because he’s facing a
charge of criminal conspiracy, involving IPC 153, IPC
153(a) and others. You raise the point of him being
questioned for 12 to 12.5 hours, I want to ask you that
this country’s former home minister and former finance
minister P Chidambaram was made to sit for so many
hours, why did that happen? You people never raise
questions on the reason behind that interrogation. I have
heard that clip and Arnab tried to stoke communal
sentiments in that speech. No one gave him that right,
not even the Constitution.”
(l)
On 30 April 2020, the IO issued two
notices to the Chief
Financial Officer10 of Republic TV under Sections 91 and
160 of the CrPC requesting for documents. Pursuant to the
notice, the CFO appeared before the Mumbai police with
publicly available documents and copies of broadcast
licenses. He was interrogated for about 6.5 hours inter alia
in regard to the following aspects:
        “
(i) Role of the Petitioner’s wife, Mrs Samyabrata Ray
Goswami in the news channels and the corporate structure
of company.
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(ii) Details of the investors in the Petitioner’s company,
ARG Outlier Media News Private Limited and whether
the Petitioner ran the news channel as a proxy owner for
an on behalf of someone else.
(iii)Surprisingly, Mr Sundaram was also asked whether there
was “someone” instructing the Petitioner to pose questions
concerning Mrs Sonia Gandhi and concerning her alleged
defamation.
(iv) As with the Petitioner, Mr Sundaram was also asked if
the Petitioner’s news channel has any arrangement of
sending video recording of news reports to the Central
Government.
(v) Details on how the Petitioner’s channel selects panelists
for news shows and whether any remuneration is paid to
them.”
(m) It has been allegedly learned that an asymptomatic officer
attached to the NM Joshi Marg Police Station in Mumbai
where the CFO was being interrogated had tested positive
for Covid-19 a day earlier with the result that all officers at
the police station were now being tested. The CFO had been
subjected to grave and unnecessary danger; and
(n)
While on the one hand, the police had been investigating
FIR 164 of 2020, the FIR lodged by the petitioner following
the attack on him11 is not being investigated satisfactorily.
Two persons alleged to have been involved in the attack on
the petitioner were enlarged on bail on 27 April 2020 by the
Magistrate’s Court at Bhoiwada, Mumbai.
12. On the basis of the above averments, the petitioner seeks the
following reliefs by his IA:
(i)
A stay
of the investigation and all incidental steps by the
Mumbai police in connection with FIR 238 of 2020
transferred to the NM Joshi Marg Police Station in Mumbai
(renumbered as FIR 164 of 2020) in pursuance of the order
of this Court dated 24 April 2020;
11 FIR 148 of 2020
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
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(ii)
In the alternative, for a transfer of the investigation to the
Central Bureau of Investigation12 with a direction to the CBI
to submit reports to this Court from time to time;
(iii)
A transfer of the investigation of FIR 148 of 2020 lodged by
the petitioner to the CBI or to an independent investigating
agency;
(iv)
Permission to the petitioner to join in the investigation by
video conferencing; and
(v)
Providing security to the petitioner and his family at his
residence and for the business establishment.
IA 48588 of 202013: filed by the Government of Maharashtra
13. The IA is supported by an affidavit of Abhinash Kumar, Deputy
Commissioner of Police, Zone-3, Mumbai, who is supervising the
investigation into Cr. No. 164 of 2020 at the NM Joshi Marg Police
Station in Mumbai. The Mumbai police has sought to highlight the conduct
of the petitioner in obstructing the due course of investigation. The reliefs
which have been sought in the IA are as follows:
“a. Issue appropriate directions as this Hon’ble Court may deem
fit so as to insulate the investigation agency from any pressure,
threat or coercion from the Petitioner and to enable the
Investigating Agency to carry out its lawful obligations in a fair
and transparent manner;
b. Restrain the Petitioner from abusing the interim protection
granted to the Petitioner vide the order dated 24th April 2020;”
14. The basis of the IA appears from the following averments:
(i)
On 27 April 2020, the petitioner attended the NM Joshi Marg
Police Station in Mumbai at 9 am accompanied by an
entourage of his reporters and camerapersons and gave
several speeches which were allegedly telecast live;
(ii)
After the petitioner had been interrogated for 4 hours, a
tweet was posted on Republic Bharat stating in Hindi that
upon coming out of the police station, the petitioner had
claimed that ‘truth will prevail’;
12 “CBI”
13 Filed by the State of Maharashtra
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(iii)
Two other tweets posted on Republic Bharat in regard to
the conduct of the investigation have sought to create an
impression that:
(a) The police is biased;
(b) The FIR lodged by the petitioner is not being
investigated; and
(c) The petitioner has been unnecessarily questioned over
several hours;
(iv)
On 28 April 2020, the petitioner hosted a debate on Republic
Bharat in the course of a programme titled “Puchta hai
Bharat” where he made allegations against the
Commissioner of Police14, Mumbai of his complicity in a
scam involving India Bulls. The petitioner threatened to reveal
these details;
(v)
The statements against the CP are intended to hinder the
course of the investigation and the allegations have surfaced
only after the investigation against the petitioner commenced
on 26 April 2020;
(vi)
The allegation of the petitioner that the police were not
investigating his FIR is belied by the circumstance that an
FIR was registered under Sections 341 and 504 read with
Section 34 of the IPC;
(vii) The two accused in the FIR filed by the petitioner were
arrested and eventually released on bail on 27 April 2020 by
the Metropolitan Magistrate at the 13th Court at Dadar
Mumbai; and
(viii) The Deputy Commissioner of Police15, Mumbai has submitted
that Palghar lies beyond the territorial jurisdiction of the
Mumbai police and hence the accusations made by the
petitioner are false. It has been submitted that the petitioner
has misused his freedom under
Article 19(1)(a) of the
Constitution by casting unfounded allegations on the CP and
hence, directions of this Court are necessary to insulate the
14 “CP”
15 “DCP”
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investigating agency so as to the enable it carry on its function
in a smooth and transparent manner.
IA 48532 of 2020: filed by the petitioner
15. The IA is by the petitioner to produce on the record an affidavit
of Shri S Sundaram, the CFO of Republic Media Network. The affidavit
of the CFO attempts to support the case of the petitioner that:
(i)
A prolonged interrogation is being carried out for a seemingly
vindictive and malicious purpose;
(ii)
The CFO has been interrogated on the structure of the
holding company, shareholding pattern and investors: matters
which are extraneous to the investigation of the FIR;
(iii)
Questions have been posed during the course of the
interrogation about the equity cash transactions, the names
of the remaining stakeholders, investment by the key investor
and the role of the petitioner’s spouse; and
(iv)
The CFO was interrogated on the editorial process of the
channel, the editorial teams involved and the process whereby
a programme is put together. The IO also inquired about
how participants are chosen.
IA 48586 of 2020: filed by the petitioner
16. The petitioner moved this IA seeking an amendment to the
petition filed under Article 32. The petitioner seeks the addition of the
following reliefs:
(i)
A declaration that Section 499 of the IPC is violative of
Article 19(1)(a) of the Constitution and is hence
unconstitutional;
(ii)
A declaration that FIR 164 of 202016 and the consequent
investigation initiated by the State of Maharashtra are illegal
and violative of the fundamental rights guaranteed to the
petitioner under Articles 19 and 21 of the Constitution;
(iii)
A writ of prohibition restraining the State of Maharashtra
from registering any FIR against the petitioner in relation to
16 Formerly FIR 238 of 2020
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the broadcast on R Bharat on 21 April 2020 in relation to the
Palghar incident; and
(iv)
A writ of prohibition restraining the State of Maharashtra
from continuing any investigation initiative pursuant to FIR
164 of 2020.
Among the documents which have been annexed to the IA for
amendment are copies of:
(a)
FIR 238 of 2020 registered on 22 April 2020 at Police Station
Sadar, District Nagpur city which now stands transferred;
(b)
Copies of the complaints lodged in relation to the broadcast
on 21 April 2020 by R Bharat at diverse police stations across
the country;
(c)
The tweets posted from the tweeter accounts of members
of the INC party;
(d)
The transcript of the interview with the complaint of FIR
164 of 2020; and
(e)
The notices issued to the CFO on 30 April 2020 by the Senior
Police Inspector, NM Joshi Marg Police Station in Mumbai.
IA 48515 of 2020 and IA 48519 of 2020:
17. These IAs have been filed by the petitioner and cover the
same reliefs which have been sought in IAs 48585 of 2020 and 48586 of
2020.
Writ Petition (Crl.) Diary No 11189 of 2020
18. The Writ Petition has been instituted under Article 32 of the
Constitution following the interim order dated 24 April 2020 passed by
this Court in the earlier petition. The subsequent petition has been
occasioned by the registration of an FIR17 against the petitioner on 2
May 2020 at the Pydhonie Police Station, Mumbai18. The FIR which
has been lodged by the third respondent, claiming to be the
Secretary of
an organization called Raza Educational Welfare Society. The FIR states
that on 29 April 2020, the petitioner made certain statements in the course
of a programme which was broadcast on R Bharat insinuating (with
reference to a place of worship) that the “people belonging to the Muslim
17 FIR 137 of 2020
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religion are responsible for the spread of Covid-19”. According to the
FIR:
“The statements made by Arnab Goswami on 29/04/2020 on
republic Bharat TV Channel in connection with the incident of
the public gathered in the area of Bandra railway station on 14/
04/2020 clearly show that despite Jama Masjid, Bandra being a
holy place of worship and despite having no connection with the
incident of the gathering of migrant workers at Bandra railway
station, Arnab Goswami gave it a communal colour and blamed
the Muslim community of being responsible for the spread of
Corona. By making statements such as the aforesaid repeatedly
on the show, he has severely hurt the sentiments of the Muslim
community. He has tried to create communal tensions, incite riots
and deliberately hurt the sentiments of the Muslim community by
insulting their place of worship. By directly connecting the gathering
of migrant workers at the Bandra railway station on 14/04/2020
with Jama Masjid, Arnab Goswami disrupted communal harmony.
His statements further implied that the Muslim community is violent
and does not respect the law. Arnab Goswami as the owner and
anchor of the said TV show has made these statements with an
intention of create a strain / communal disharmony between the
Hindu and Muslim communities.”
19. Having adverted to the telecast which took place on 29 April
2020, the FIR makes a reference to 14 April 2020 as the date on which
the
petitioner as the “anchor and owner” of R Bharat has attempted to
connect a place of religious worship with the gathering of migrant workers
at Bandra railway station. The FIR has been registered under Sections
153, 153A, 295A, 500, 505(2), 511, 505 (1)(c) and 120B of the IPC.
Challenging the FIR, the petitioner seeks to invoke the jurisdiction of this
Court for an order quashing the FIR and for a writ directing that no
cognisance should be taken on any complaint or FIR on the same cause
of action hereafter.
20. Leading the arguments on behalf of the petitioner, Mr Harish
Salve, learned Senior Counsel submitted that the petition which has been
instituted before this Court under Article 32 raises “wider issues”
implicating the freedom of speech and expression of a journalist to air
views which fall within the protective ambit of Article 19(1)(a). Mr Salve
submitted that the petitioner is justified in invoking this jurisdiction since
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it is necessary for this Court to lay down safeguards which protect the
democratic interest in fearless and independent journalism. The
submissions which Mr Salve urges can be formulated for analysis thus:
(i)
Both the FIRs which have been lodged against the petitioner
are intended to stifle the free expression of views by an
independent journalist which is protected within the ambit of
Article 19(1)(a) of the Constitution;
(ii)
The investigation by the Mumbai police is mala fide;
(iii)
The fact that the lodging of the FIR and the commencement
of investigation is mala fide is evident from the following
circumstances:
a.
All the FIRs, or as the case may be, the complaints are
replicas with little variation of language or content and
with respect to the same cause of action;
b.
The complainants have all chosen states where the
government has been formed of or with the support of
the INC;
c.
The enquiries which were made by the police during
the course of interrogating the petitioner and the CFO
bear no nexus with the contents of the FIR and it is
evident that the petitioner is being targeted for
expressing views critical of the President of the INC;
d.
The involvement of the INC in targeting the petitioner
is evident from the fact that during the course of the
investigation, tweets by activists and members of the
party appeared on social media bearing on the course
of the interrogation;
e.
The complainant of the FIR, who is a Cabinet Minister
in the State
Government of Maharashtra, has gone on
record in the course of an interview to target the
petitioner for airing his views;
f.
The investigation by the Mumbai police is directed
against an alleged act of defamation committed against
the President of the INC. The police are trying to
implicate the petitioner in the offence of defamation
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despite the settled position of law that absent a
complaint by the person who is allegedly defamed, no
FIR can be lodged; and
g.
The petitioner has, in the course of his programmes on
R Bharat and Republic TV, implicated the Maharashtra
police and the State Government for their failure to
investigate the Palghar incident. He has leveled serious
allegations against the CP, Mumbai. Hence, there is an
evident conflict of interest in the investigation being
conducted by the Mumbai police and the petitioner
apprehends that a fair and impartial process will be
denied to him were the investigation to continue; and
(iv)
In the circumstances which have been set out above, it is
appropriate to protect the constitutional rights of the petitioner
by directing that the investigation be stayed or that, in the
alternative, it be handed over to the CBI.
21. Mr Tushar Mehta, learned Solicitor General has urged that
this is a peculiar situation where the Mumbai police, as the investigating
agency, has sought the protection of this Court in order to conduct a fair
and impartial investigation, complaining that the petitioner is impeding
the process. The Solicitor General submitted that in this backdrop, it
would be appropriate if the Court were to decide that an impartial agency
conduct the investigation. Mr Mehta urged that should this Court be
inclined to hand over the investigation to the CBI, the agency will conduct
the
investigation. The Solicitor General urged that:
(i)
The conduct of the state police in the present case is
‘disturbing’;
(ii)
The police, as an investigating agency, has sought insulation
from the accused; and
(iii)
Investigation by an agency which allays any apprehension
of victimisation would be the appropriate course of action.
22. Mr Kapil Sibal, learned Senior Counsel appearing on behalf of
the State of Maharashtra has, while opposing the petitions, urged that:
(i)
Both the petitions are an attempt to seek directions from
this Court to monitor the course of the investigation which is
impermissible in view of the settled legal position;
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(ii)
The pleadings in the petitions as well as the submissions
urged during the hearing indicate that the petitioner is
objecting to the questions which were posed to him during
the course of the investigation;
(iii)
The petitioner, as the person against whom the first FIR has
been lodged, has absolutely no locus to question the line of
investigation or nature of the interrogation;
(iv)
The rights of the petitioner under Article 19(1)(a) are subject
to the limitation stipulated in Article 19(2). The FIRs and the
video clips from the programmes posted by the petitioner
(clips of which were played by Mr Kapil Sibal, learned Senior
Counsel over video conferencing during the course of the
hearing) indicate that the offences in question are made out;
(v)
Contrary to the allegations which have been leveled by the
petitioner against the Maharashtra police, it is the petitioner
who has made a conscious effort to stifle the investigation
by an unrestrained use of social media, which is evident from
the tweets emanating from the channel during and after the
interrogation;
(vi)
The petitioner can have absolutely no grievance with the
course of the investigation when he was summoned for
interrogation only on one day between the date of the
registration of the FIR and the present time;
(vii) Mumbai police has no territorial jurisdiction or connection
with the investigation which has been conducted into the
Palghar incident;
(viii) The conduct of the petitioner would
indicate that he has made
baseless allegations against the CP, Mumbai for the first
time after his interrogation took place on 27 April 2020. The
attempt by the petitioner is clearly to use his position as a
media journalist to create an environment of ill-feeling
towards the investigating agency;
(ix)
As regards the second FIR, no investigation has commenced
and hence recourse to the jurisdiction of this Court under
Article 32 is premature;
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(x)
Despite the liberty which was granted to the petitioner by
this Court in its order dated 24 April 2020, the petitioner has
neither moved the Bombay High Court for quashing the FIRs
under Section 482 of the CrPC or for the grant of anticipatory
bail; and
(xi)
In the above circumstances, the petitions filed by the
petitioner under Article 32 of the Constitution ought not to
be entertained.
23. Dr Abhishek Manu Singhvi, learned Senior Counsel appearing
on behalf of the investigating agency of the Maharashtra police adduced
seven precepts as the foundation of his submission that the petitions
ought not to be entertained. Dr Singhvi urged:
(i)
The facts of the present case clearly demonstrate that in
the garb of an arc of protection, the accused is attempting to
browbeat the police;
(ii)
The petitions under Article 32 constitute an attempt of ‘leap
frogging’ the normal procedure available under the CrPC;
(iii)
Any interference in the course of an investigation is
impermissible;
(iv)
What the petitioner seeks to attempt by the process which
has been adopted is to convert the jurisdiction under Article
32 into one under Section 482 of the CrPC;
(v)
Though the petitioner is entitled to the fundamental rights
under Article 19(1)(a), their exercise is subject to the
limitations stipulated in Article 19(2). The content of the FIRs
and the video clips would demonstrate that the restrictions
under Article 19(2) are attracted;
(vi)
Applying the sub judice doctrine, the petitioner is not entitled
to seek the intervention of this Court in the course of an
investigation; and
(vii) The transfer of an ongoing investigation to the CBI has been
held to be an extraordinary power which must be sparingly
exercised in exceptional circumstances. The accused, it is
well-settled, can have no locus in regard to the choice of
the investigating agency.
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24. Elaborating these submissions, Dr Singhvi submitted that:
(i)
Despite the protection that was granted by this Court for
three weeks, the petitioner has not moved the competent
court for anticipatory bail or for quashing the FIRs;
(ii)
No complainant was impleaded when the first petition was
filed;
(iii)
In respect of the FIR at the Pydhonie Police Station, no
investigation has even commenced;
(iv)
The transfer of the investigation of the first FIR from Police
Station Sadar, District Nagpur City to NM Joshi Marg Police
Station in Mumbai was at the request of and with the consent
of the petitioner; and
(v)
The conduct of the petitioner indicates that it is he who is
stifling the investigation.
25. Dr Singhvi submitted that an interrogation does not infringe
personal liberty. On the basis of the above submissions, it has been urged
that no case has been made out for the transfer of the investigation to
the CBI. He urged that the second Writ Petition must, in any event, be
dismissed.
26. At this stage, it is necessary to note that the attention of Mr
Kapil Sibal and Dr Singhvi, learned Senior Counsel was specifically drawn
to the fact that the FIRs which were filed in various states by persons
professing allegiance to the INC appear, prima facie, to be reproductions
of the same language and content. Responding to this, Mr Sibal fairly
stated that in the exercise of the jurisdiction under Article 32, this Court
may well quash all the other FIRs and allow
the investigation into the
FIR which has been transferred to the NM Joshi Marg Police Station in
Mumbai to proceed in accordance with law. Mr Sibal has also urged
that there cannot be any dispute in regard to the legal position that a
complaint in regard to the offence of defamation can only be at the
behest of the person who is aggrieved. Consequently, the FIR which has
been presently under investigation at the NM Joshi Marg Police Station
in Mumbai would not cover any offence under Section 499 of the IPC.
27. Mr K V Vishwanathan, learned Senior Counsel appearing on
behalf of the complainant in the second FIR submitted that:
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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(i)
The FIR which was lodged on 2 May 2020 pertains to a
broadcast which took place on 29 April 2020;
(ii)
The maintainability of the Writ Petitions under Article 32 is
questioned; and
(iii)
The statements made by the petitioner in the course of the
programmes which were broadcast clearly implicate
offences under Sections 153A, 295A and cognate provisions
of the IPC.
Analysis
28. The fundamental basis on which the jurisdiction of this Court
has been invoked under Article 32 is the filing of multiple FIRs and
complaints in various States arising from the same cause of action. The
cause of action was founded on a programme which was telecast on R
Bharat on 21 April 2020. FIRs and criminal complaints were lodged
against the petitioner in the States of Maharashtra, Rajasthan, Madhya
Pradesh, Telangana and Jharkhand besides the Union Territories of
Jammu and Kashmir. The law concerning multiple criminal proceedings
on the same cause of action has been analyzed in a judgment of this
Court in TT Antony v State of Kerala19 (“TT Antony”). Speaking for
a two judge Bench, Justice Syed Shah Mohammed Quadri interpreted
the provisions of Section 154 and cognate provisions of the CrPC including
Section 173 and observed:
“20…under the scheme of the provisions of Sections 154, 155,
156, 157, 162, 169, 170 and 173 CrPC, only the earliest or the first
information in regard to the commission of a cognizable offence
satisfies the
requirements of Section 154 CrPC. Thus, there can
be no second FIR and consequently there can be no fresh
investigation on receipt of every subsequent information in respect
of the same cognizable offence or the same occurrence or incident
giving rise to one or more cognizable offences. On receipt of
information about a cognizable offence or an incident giving rise
to a cognizable offence or offences and on entering the FIR in the
station house diary, the officer in charge of a police station has to
investigate not merely the cognizable offence reported in the FIR
but also other connected offences found to have been committed
19 (2001) 6 SCC 181
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in the course of the same transaction or the same occurrence and
file one or more reports as provided in Section 173 CrPC.”
The Court held that “there can be no second FIR” where the
information concerns the same cognisable offence alleged in the first
FIR or the same occurrence or incident which gives rise to one or more
cognisable offences. This is due to the fact that the investigation covers
within its ambit not just the alleged cognisable offence, but also any
other connected offences that may be found to have been committed.
This Court held that once an FIR postulated by the provisions of Section
154 has been recorded, any information received after the
commencement of investigation cannot form the basis of a second FIR
as doing so would fail to comport with the scheme of the CrPC. The
court observed:
“18…All other information made orally or in writing after the
commencement of the investigation into the cognizable offence
disclosed from the facts mentioned in the first information report
and entered in the station house diary by the police officer or such
other cognizable offences as may come to his notice during the
investigation, will be statements falling under Section 162 CrPC.
No such information/statement can properly be treated as an FIR
and entered in the station house diary again, as it would in effect
be a second FIR and the same cannot be in conformity with the
scheme of CrPC.”
This Court adverted to the need to strike a just balance
between
the fundamental rights of citizens under Articles 19 and 21 and the
expansive power of the police to investigate a cognisable offence.
Adverting to precedent, this Court held:
“27…the sweeping power of investigation does not warrant
subjecting a citizen each time to fresh investigation by the police
in respect of the same incident, giving rise to one or more
cognizable offences, consequent upon filing of successive FIRs
whether before or after filing the final report under Section 173(2)
CrPC. It would clearly be beyond the purview of Sections
154 and 156 CrPC, nay, a case of abuse of the statutory
power of investigation in a given case. In our view a case of
fresh investigation based on the second or successive FIRs, not
being a counter-case, filed in connection with the same or
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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connected cognizable offence alleged to have been committed in
the course of the same transaction and in respect of which pursuant
to the first FIR either investigation is under way or final report
under Section 173(2) has been forwarded to the Magistrate, may
be a fit case for exercise of power under Section 482 CrPC
or under Articles 226/227 of the Constitution.”
(Emphasis supplied)
The Court held that barring situations in which a counter-case is
filed, a fresh investigation or a second FIR on the basis of the same or
connected cognisable offence would constitute an “abuse of the statutory
power of investigation” and may be a fit case for the exercise of power
either under Section 482 of the CrPC or Articles 226/227 of the
Constitution.
29. The decision in TT Antony came up for consideration before
a three judge Bench in Upkar Singh v Ved Prakash20 (“Upkar
Singh”). Justice N Santosh Hegde, speaking for this Court adverted to
the earlier decisions of this Court in Ram Lal Narang v State (Delhi
Administration)21 (“Ram Lal Narang”), Kari Choudhary v Mst.
Sita Devi22 (“Kari Choudhary”) and State of Bihar v JAC Saldanha23
(“Saldanha”). The Court noted that in Kari Choudhary, this Court
held that:
“11…Of course the legal position is that there cannot be two FIRs
against the same accused in respect of the same case. But when
there are rival versions in respect of the same episode, they would
normally take the shape of two
different FIRs and investigation
can be carried on under both of them by the same investigating
agency.”
30. In Saldanha, this Court had held that the power conferred
upon the Magistrate under Section 156(3) does not affect the power of
the investigating officer to further investigate the case even after
submission of the report under Section 173(8). In Upkar Singh, this
Court noted that the decision in Ram Lal Narang is “in the same line”
as the judgments in Kari Choudhary and Saldanha and held that the
20 (2004) 13 SCC 292
21 (1979) 2 SCC 322
22 (2002) 1 SCC 714
23 (1980) 1 SCC 554
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decision in TT Antony does not preclude the filing of a second complaint
in regard to the same incident as a counter complaint nor is this course
of action prohibited by the CrPC. In that context, this Court held:
“23. Be that as it may, if the law laid down by this Court in T.T.
Antony case [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] is to be
accepted as holding that a second complaint in regard to the same
incident filed as a counter-complaint is prohibited under the Code
then, in our opinion, such conclusion would lead to serious
consequences. This will be clear from the hypothetical example
given hereinbelow i.e. if in regard to a crime committed by the
real accused he takes the first opportunity to lodge a false complaint
and the same is registered by the jurisdictional police then the
aggrieved victim of such crime will be precluded from lodging a
complaint giving his version of the incident in question, consequently
he will be deprived of his legitimate right to bring the real accused
to book. This cannot be the purport of the Code.”
These principles were reiterated by a two judge Bench of this
Court in Babubhai v State of Gujarat24. Dr Justice B S Chauhan
observed:
“21. In such a case the court has to examine the facts and
circumstances giving rise to both the FIRs and the test of sameness
is to be applied to find out whether both the FIRs relate to the
same incident in respect of the same occurrence or are in regard
to the incidents which are two or
more parts of the same
transaction. If the answer is in the affirmative, the second FIR is
liable to be quashed. However, in case the contrary is proved,
where the version in the second FIR is different and they are in
respect of the two different incidents/crimes, the second FIR is
permissible. In case in respect of the same incident the accused
in the first FIR comes forward with a different version or
counterclaim, investigation on both the FIRs has to be conducted.”
This Court held that the relevant enquiry is whether two or more
FIRs relate to the same incident or relate to incidents which form part of
the same transactions. If the Court were to conclude in the affirmative,
the subsequent FIRs are liable to be quashed. However, where the
subsequent FIR relates to different incidents or crimes or is in the form
of a counter-claim, investigation may proceed.
24 (2010) 12 SCC 254
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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[See also in this context Chirra Shivraj v State of Andhra
Pradesh25 and Chirag M Pathak v Dollyben Kantilal Patel26].
31. In the present case, all the FIRs or complaints which have
been lodged in diverse jurisdictions arise out of one and the same incident
- the broadcast by the petitioner on 21 April 2020 on R Bharat. The
broadcast is the foundation of the allegation that offences have been
committed under the provisions of Sections 153, 153A, 153B, 295A,
298, 500, 504 and 506 of the IPC. During the course of the hearing, this
Court has had the occasion, with the assistance of the learned Senior
Counsel, to peruse the several complaints that were filed in relation to
the incident dated 21 April 2020. They are worded in identical terms and
leave no manner of doubt that an identity of cause of action underlies
the allegations leveled against the petitioner on the basis of the programme
which was broadcast on 21 April 2020. Moreover, the language, content
and sequencing of paragraphs and their numbering is identical. It was in
this backdrop that Mr Kapil Sibal, learned Senior Counsel fairly submitted
(in our view correctly) that this Court may proceed to quash all the other
FIRs and complaints lodged in diverse jurisdictions in the States, leaving
open, however, the investigation in respect of the FIR 238 of 2020 dated
22 April 2020 transferred from the Police Station Sadar, District Nagpur
City to NM Joshi Marg Police
Station in Mumbai.
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 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 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 Article 19(2).
But to allow a journalist to be subjected to multiple complaints and to the
pursuit of remedies traversing 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
25 (2010) 14 SCC 444
26 (2018) 1 SCC 330
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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 that one cannot exist without the other. Free citizens
cannot exist when the news media is chained to adhere to one position.
Yuval Noah Harari has put it succinctly in his recent book titled “21
Lessons for the 21st Century”: “Questions you cannot answer are usually
far better for you than answers you cannot question.”
33. A litany of our decisions – to refer to them individually would
be a parade of the familiar – has firmly established that any reasonable
restriction on fundamental rights must comport with the proportionality
standard, of which one component is that the measure adopted must be
the least restrictive measure to effectively achieve the legitimate state
aim. Subjecting an individual to numerous proceedings arising in different
jurisdictions on the basis of the same cause of action cannot be accepted
as the least restrictive and effective method of achieving the legitimate
state aim in prosecuting crime. The manner in which the petitioner has
been subjected to numerous FIRs in several States, besides the Union
Territories of Jammu and Kashmir on the basis of identical allegations
arising out of the same television show would leave no manner of doubt
that the intervention of this Court is necessary
to protect the rights of the
petitioner as a citizen and as a journalist to fair treatment (guaranteed by
Article 14) and the liberty to conduct an independent portrayal of views.
In such a situation to require the petitioner to approach the respective
High Courts having jurisdiction for quashing would result into a multiplicity
of proceedings and unnecessary harassment to the petitioner, who is a
journalist.
34. The issue concerning the registration of numerous FIRs and
complaints covering different states is however, as we will explain, distinct
from the investigation which arises from FIR 164 of 2020 at NM Joshi
Marg Police Station in Mumbai. The petitioner, in the exercise of his
right under Article 19(1)(a), is not immune from an investigation into the
FIR which has been transferred from Police Station Sadar, District Nagpur
City to NM Joshi Marg Police Station in Mumbai. This balance has to be
drawn between the exercise of a fundamental right under Article 19(1)(a)
and the investigation for an offence under the CrPC. All other FIRs in
respect of the same incident constitute a clear abuse of process and
must be quashed.
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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35. The petitioner has sought, for reasons outlined earlier, the
transfer of the investigation to CBI. Before we elucidate the law on the
subject, we must emphasize at the outset that the transfer of FIR 238 of
2020 from the Police Station Sadar, District Nagpur City to NM Joshi
Marg Police Station in Mumbai was with the consent of the petitioner
and on his request. The reason why the investigation of the FIR was
transferred to the NM Joshi Police Station in Mumbai was because that
was the police station at which an earlier FIR had been lodged by the
petitioner in respect of the incident when he and his spouse were allegedly
obstructed by two political activists on their way home at midnight on 23
April 2020. Having accepted the transfer of the investigation from Police
Station Sadar, District Nagpur City to NM Joshi Marg Police Station in
Mumbai, the petitioner now seeks to question that very investigation by
the Mumbai police.
36. The transfer of an investigation to the CBI is not a matter of
routine. The precedents of this Court emphasise that this is an
“extraordinary power” to be used “sparingly” and “in exceptional
circumstances”. Speaking for a Constitution Bench in State of West
Bengal v Committee for Protection of Democratic Rights, West
Bengal27 (“CPDR, West Bengal”), Justice DK Jain observed:
“70…despite wide powers conferred by Articles 32 and 226 of
the Constitution, while passing any order, the Courts
must bear in
mind certain self-imposed limitations on the exercise of these
constitutional powers. The very plenitude of the power under the
said articles requires great caution in its exercise. Insofar as the
question of issuing a direction to CBI to conduct investigation in a
case is concerned, although no inflexible guidelines can be laid
down to decide whether or not such power should be exercised
but time and again it has been reiterated that such an order
is not to be passed as a matter of routine or merely because
a party has levelled some allegations against the local
police. This extraordinary power must be exercised
sparingly, cautiously and in exceptional situations where it
becomes necessary to provide credibility and instill
confidence in investigations or where the incident may have
national and international ramifications or where such an
order may be necessary for doing complete justice and
27 (2010) 3 SCC 571
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enforcing the fundamental rights. Otherwise CBI would be
flooded with a large number of cases and with limited resources,
may find it difficult to properly investigate even serious cases and
in the process lose its credibility and purpose with unsatisfactory
investigations.”
(Emphasis supplied)
This principle has been reiterated in K V Rajendran v
Superintendent of Police, CBCID South Zone, Chennai28. Dr
Justice B S Chauhan, speaking for a three judge Bench of this Court
held:
“13…This Court has time and again dealt with the issue under
what circumstances the investigation can be transferred from
the State investigating agency to any other independent
investigating agency like CBI. It has been held that the power
of transferring such investigation must be in rare and
exceptional cases where the court finds it necessary in order
to do justice between the parties and to instill confidence in the
public mind, or where investigation by the State police lacks
credibility and it is necessary for having “a fair, honest and
complete investigation”, and particularly, when it is imperative
to retain public confidence in the impartial working of the State
agencies.”
Elaborating on this principle, this Court observed:
“17…the Court could exercise its constitutional powers for
transferring an investigation from the State investigating agency
to any other independent investigating agency like CBI only in
rare and exceptional cases. Such as where high officials of
State
authorities are involved, or the accusation itself is against
the top officials of the investigating agency thereby allowing
them to influence the investigation, and further that it is so
necessary to do justice and to instill confidence in the
investigation or where the investigation is prima facie found to
be tainted/biased.”
28 (2013) 12 SCC 480
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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The Court reiterated that an investigation may be transferred to
the CBI only in “rare and exceptional cases”. One factor that courts
may consider is that such transfer is “imperative” to retain “public
confidence in the impartial working of the State agencies.” This
observation must be read with the observations by the Constitution Bench
in CPDR, West Bengal that mere allegations against the police do not
constitute a sufficient basis to transfer the investigation.
37. In Romila Thapar v Union of India29, Justice AM Khanwilkar
speaking for a three judge Bench of this Court (one of us, Dr Justice DY
Chandrachud, dissenting) noted the dictum in a line of precedents laying
down the principle that the accused “does not have a say in the matter
of appointment of investigating agency”. In reiterating this principle, this
Court relied upon its earlier decisions in Narmada Bai v State of
Gujarat30, Sanjiv Rajendra Bhatt v Union of India31, E Sivakumar
v Union of India32 and Divine Retreat Centre v State of Kerala33.
This Court observed:
“30…the consistent view of this Court is that the accused cannot
ask for changing the investigating agency or to do investigation in
a particular manner including for court-monitored investigation.”
38. The principle of law that emerges from the precedents of this
Court is that the power to transfer an investigation must be used
“sparingly” and only “in exceptional circumstances”. In
assessing the
plea urged by the petitioner that the investigation must be transferred to
the CBI, we are guided by the parameters laid down by this Court for
the exercise of that extraordinary power. It is necessary to address the
grounds on which the petitioner seeks a transfer of the investigation.
The grounds urged for transfer are:
(i)
The length of the interrogation which took place on 27 April
2020;
(ii)
The nature of the inquiries which were addressed to the
Petitioner and the CFO and the questions addressed during
interrogation;
29 (2018) 10 SCC 753
30 (2011) 5 SCC 79
31 (2016) 1 SCC 1
32 (2018) 7 SCC 365
33 (2008) 3 SCC 542
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(iii)
The allegations leveled by the petitioner against the failure
of the State government to adequately probe the incident at
Palghar involving an alleged lynching of two persons in the
presence of police and forest department personnel;
(iv)
Allegations which have been made by the petitioner on 28
April 2020 in regard to CP, Mumbai; and
(v)
Tweets on the social media by activists of the INC and the
interview by the complainant to a representative of R Bharat.
39. As we have observed earlier, the petitioner requested for and
consented to the transfer of the investigation of the FIR from the Police
Station Sadar, District Nagpur City to the NM Joshi Marg Police Station
in Mumbai. He did so because an earlier FIR lodged by him at that
police station was under investigation. The petitioner now seeks to preempt
an investigation by the Mumbai police. The basis on which the petitioner
seeks to achieve this is untenable. An accused person does not have a
choice in regard to the mode or manner in which the investigation should
be carried out or in regard to the investigating agency. The line of
interrogation either of the petitioner or of the CFO cannot be controlled
or dictated by the persons under investigation/interrogation. In
P Chidambaram v Directorate of Enforcement34, Justice R
Banumathi speaking for a two judge Bench of this Court held that:
“66…there is a well-defined and demarcated function in the field
of investigation and its subsequent
adjudication. It is not the function
of the court to monitor the investigation process so long as the
investigation does not violate any provision of law. It must be
left to the discretion of the investigating agency to decide
the course of investigation. If the court is to interfere in each
and every stage of the investigation and the interrogation of the
accused, it would affect the normal course of investigation. It
must be left to the investigating agency to proceed in its
own manner in interrogation of the accused, nature of
questions put to him and the manner of interrogation of the
accused.”
(Emphasis supplied)
34 (2019) 9 SCC 24
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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This Court held that so long as the investigation does not violate
any provision of law, the investigation agency is vested with the discretion
in directing the course of investigation, which includes determining the
nature of the questions and the manner of interrogation. In adopting this
view, this Court relied upon its earlier decisions in State of Bihar v P P
Sharma35 and Dukhishyam Benupani, Asst. Director, Enforcement
Directorate (FERA) v Arun Kumar Bajoria36 in which it was held
that the investigating agency is entitled to decide “the venue, the timings
and the questions and the manner of putting such questions” during the
course of the investigation.
40. In Director, Central Bureau of Investigation v
Niyamavedi represented by its Member K Nandini, Advocate37,
Justice Sujata V Manohar, speaking for a three judge Bench of this
Court held that the High Court should have:
“4…refrained from making any comments on the manner in which
investigation was being conducted by the CBI, looking to the fact
that the investigation was far from complete.”
This Court observed that:
“4…Any observations which may amount to interference in the
investigation, should not be made. Ordinarily the Court should
refrain from interfering at a premature stage of the investigation
as that may derail the investigation and demoralise the
investigation. Of late, the tendency to interfere in the investigation
is on the increase and courts
should be wary of its possible
consequences.”
This Court adopted the position that courts must refrain from
passing comments on an ongoing investigation to extend to the
investigating agencies the requisite liberty and protection in conducting a
fair, transparent and just investigation.
41. The contention of the petitioner that the length of the
investigation or the nature of the questions addressed to him and the
CFO during the interrogation must weigh in transferring the investigation
cannot be accepted. The investigating agency is entitled to determine
the nature of the questions and the period of questioning. The Petitioner
35 1992 Supp. (1) SCC 222
36 (1998) 1 SCC 52
37 (1995) 3 SCC 601
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was summoned for investigation on one day. Furthermore, the allegation
of the Petitioner that there is a conflict of interest arising out of the
criticism by him of the alleged  failure of the State government to
adequately probe the incident at Palghar is not valid. The investigation
of the Palghar incident is beyond  the territorial jurisdiction of the Mumbai
police.
42. The petitioner has then sought to rely upon the allegations
which he has leveled against the CP, Mumbai. The petitioner was
interrogated on 27 April 2020. The allegations which he leveled against
the CP, Mumbai were in the course of a television programme on 28
April 2020 (“Poochta hai Bharat”) relayed on R Bharat at 1900 hrs. As
we have noted earlier, this Court has, in CPDR, West Bengal held that
no transfer of investigation can be ordered “merely because a party has
levelled some allegations against the local police.” Accordingly, we do
not find that leveling such allegations would by and itself constitute a
sufficient ground for the transfer of the investigation.
43. The interview given by the complainant to a representative of
R Bharat does not furnish a valid basis in law for an inference that the
investigation is tainted or as warranting a transfer of investigation to the
CBI. The Government of Maharashtra has moved an application before
this Court (affirmed by the DCP, Zone-3) seeking appropriate directions
to insulate the investigating agency “from any pressure, threat or
coercion
from the petitioner” and to enable it to discharge its lawful duties in a
fair and transparent manner. Based on the views tweeted by R Bharat
on social media, it is the Maharashtra police which is now claiming a
restraining order against the petitioner. We are unable to accede to the
submission of the Solicitor General that the contents of the IA filed by
the State would make it necessary to transfer the investigation to the
CBI. The investigating agency has placed on the record what it believes
is an attempt by the petitioner to discredit the investigation by taking
recourse to the social media and by utilizing the news channels which he
operates. Social media has become an overarching presence in society.
To accept the tweets by the petitioner and the interview by the complainant
as a justification to displace a lawfully constituted investigation agency
of its jurisdiction and duty to investigate would have far-reaching
consequences for the federal structure. We are disinclined to do so.
44. In assessing the contention for the transfer of the investigation
to the CBI, we have factored into the decision-making calculus the
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averments on the record and submissions urged on behalf of the petitioner.
We are unable to find any reason that warrants a transfer of the
investigation to the CBI. In holding thus, we have applied the tests spelt
out in the consistent line of precedent of this Court. They have not been
fulfilled. An individual under investigation has a legitimate expectation of
a fair process which accords with law. The displeasure of an accused
person about the manner in which the investigation proceeds or an
unsubstantiated  allegation (as in the present case) of a conflict of interest
against the police conducting the investigation must not derail the
legitimate course of law and warrant the invocation of the extraordinary
power of this Court to transfer an investigation to the CBI. Courts assume
the extraordinary jurisdiction to transfer an investigation in exceptional
situations to ensure that the sanctity of the administration of criminal
justice is preserved. While no inflexible guidelines are laid down, the
notion that such a transfer is an “extraordinary power” to be used
“sparingly” and “in exceptional circumstances” comports with the idea
that routine transfers would belie not just public confidence in the normal
course of law but also render meaningless the extraordinary situations
that warrant the exercise of the power to transfer the investigation.
Having balanced and considered the material on record as well as the
averments of and submissions urged by the petitioner, we find that no
case of the nature which falls within the ambit of the tests enunciated in
the precedents of this Court has been established for the transfer of the
investigation.
45. A final aspect requires elaboration. Section 199 of the CrPC
stipulates prosecution for defamation. Sub-section (1) of Section 199
stipulates that no court shall take cognisance of an offence punishable
under Chapter XXI of the Penal Code, 1860 except upon a complaint
made by some person aggrieved by the offence. However, where such
a person is under the age of eighteen years, or suffers from a mental
illness or from sickness or infirmity  rendering the person unable to make
a complaint, or is a woman who, according to the local customs and
manners, ought not to be compelled to appear in public, some other person
may, with the leave of the court, make a complaint on his or her behalf.
Sub-section (2) states that when any offence is alleged against a person
who is the President of India, Vice-President of India, Governor of a
State,  Administrator of a Union Territory or a Minister of the Union or
of a State or of a Union Territory, or any other public servant employed
in connection with the affairs of the Union or of a State in respect of
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their conduct in the discharge of  public functions, a Court of Session
may take cognisance of such offence, without the case being committed
to it, upon a complaint in writing made by the Public Prosecutor. Sub-
section (3) states that every complaint referred to in sub-section (2)
shall set forth the facts which constitute the offence alleged, the nature
of such offence and such other particulars as are reasonably sufficient
to give notice to the accused of the offence alleged to have been
committed. Sub-section (4) mandates that no complaint under sub-section
(2) shall be made by the Public Prosecutor except with the previous
sanction of the State Government, in the case of a person who is or has
been the Governor of that State or a Minister of that Government or any
other public servant employed in connection with the affairs of the State
and of the Central Government, in any other case. Sub-section (5) bars
the Court of Sessions from taking cognisance of an offence under sub-
section (2) unless the complaint is made within six months from the date
on which the offence is alleged to have been committed. Sub-section (6)
states that nothing in this section shall affect the right of the person
against whom the offence is alleged to have been committed, to make a
complaint in respect of that offence before a Magistrate having jurisdiction
or the power of such Magistrate to take cognisance of the offence upon
such complaint.38
46. Interpreting this
provision, a two judge Bench of this Court in
Subramanian Swamy v Union of India, Ministry of Law39
(“Subramanian Swamy”) held that neither can an FIR be filed nor can
a direction be issued under Section 156 (3) of the CrPC and it is only a
complaint which can be instituted by a person aggrieved. This Court
held:
“207. Another aspect required to be addressed pertains to issue
of summons. Section 199 CrPC envisages filing of a complaint in
court. In case of criminal defamation neither can any FIR be filed
nor can any direction be issued under Section 156(3) CrPC. The
offence has its own gravity and hence, the responsibility of the
Magistrate is more. In a way, it is immense at the time of issue of
process. Issue of process, as has been held in Rajindra Nath
Mahato v. T. Ganguly [Rajindra Nath Mahato v. T. Ganguly,
(1972) 1 SCC 450 : 1972 SCC (Cri) 206], is a matter of judicial
38 Subramanian Swamy v Union of India, Ministry of Law: (2016) 7 SCC 221 at
paragraph 197
39 (2016) 7 SCC 221
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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determination and before issuing a process, the Magistrate has to
examine the complainant. In Punjab National Bank v. Surendra
Prasad Sinha [Punjab National Bank v. Surendra Prasad
Sinha, 1993 Supp (1) SCC 499 : 1993 SCC (Cri) 149] it has been
held that judicial process should not be an instrument of oppression
or needless harassment. The Court, though in a different context,
has observed that there lies responsibility and duty on the
Magistracy to find whether the accused concerned should be legally
responsible for the offence charged for. Only on satisfying that
the law casts liability or creates offence against the juristic person
or the persons impleaded, then only process would be issued. At
that stage the court would be circumspect and judicious in
exercising discretion and should take all the relevant facts and
circumstances into consideration before issuing process lest it
would be an instrument in the hands of the private complaint as
vendetta to harass the persons needlessly. Vindication of majesty
of justice and maintenance of law and order in the society are the
prime objects of criminal justice but it would not be the means to
wreak personal vengeance. In Pepsi Foods Ltd. v. Special
Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial
Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , a two-
Judge Bench has held that summoning of an accused in a criminal
case is a serious matter and criminal law
cannot be set into motion
as a matter of course.”
47. In view of the clear legal position, Mr Kapil Sibal, learned
Senior Counsel appearing on behalf of the State of Maharashtra has
fairly stated that the FIR which is under investigation at the NM Joshi
Marg Police Station in Mumbai does not and cannot cover any alleged
act of criminal defamation. We will clarify this in our final directions.
48. Before we conclude, it is necessary to advert to the interim
order of this Court dated 24 April 2020. By the interim order, the petitioner
has been granted liberty to move the competent court in order to espouse
the remedies available under the CrPC. Hence, we clarify that this court
has not in the present judgment expressed any opinion on the FIR which
is under investigation at the NM Joshi Marg Police Station in Mumbai.
49. We hold that it would be inappropriate for the court to exercise
its jurisdiction under Article 32 of the Constitution for the purpose of
quashing FIR 164 of 2020 under investigation at the NM Joshi Marg
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Police Station in Mumbai. In adopting this view, we are guided by the
fact that the checks and balances to ensure the protection of the
petitioner’s liberty are governed by the CrPC. Despite the liberty being
granted to the petitioner on 24 April 2020, it is an admitted position that
the petitioner did not pursue available remedies in the law, but sought
instead to invoke the jurisdiction of this Court. Whether the allegations
contained in the FIR do or do not make out any offence as alleged will
not be decided in pursuance of the jurisdiction of this Court under Article
32, to quash the FIR. The petitioner must be relegated to the pursuit of
the remedies available under the CrPC, which we hereby do. The
petitioner has an equally efficacious remedy available before the High
Court. We should not be construed as holding that a petition under Article
32 is not maintainable. But when the High Court has the power under
Section 482, there is no reason to by-pass the procedure under the CrPC,
we see no exceptional grounds or reasons to entertain this petition under
Article 32. There is a clear distinction between the maintainability of a
petition and whether it should be entertained. In a situation like this, and
for the reasons stated hereinabove, this Court would not like to entertain
the petition under Article 32 for the relief of quashing the FIR being
investigated at the NM Joshi Police Station in Mumbai which can be
considered by the High Court. Therefore,
we are of the opinion that the
petitioner must be relegated to avail of the remedies which are available
under the CrPC before the competent court including the High Court.
50. By the order of this Court dated 24 April 2020, the petitioner
was protected against coercive steps for a period of three weeks. The
period which was due to expire on 14 May 2020 was extended, when
judgment was reserved on 11 May 2020, pending the decision of this
Court. We are inclined to extend that protection for a further period of
three weeks, particularly having regard to the outbreak of Covid-19, so
as to leave adequate time to the petitioner to pursue his remedies before
the competent forum.
51. As we have noted earlier, multiple FIRs and complaints have
been filed against the petitioner in several states and in the Union
Territories of Jammu and Kashmir. By the interim order of this Court
dated 24 April 2020, further steps in regard to all the complaints and
FIRs, save and except for the investigation of the FIR lodged at Police
Station Sadar, District Nagpur City were stayed. The FIR at Police Station
Sadar, District Nagpur City has been transferred to NM Joshi Marg
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
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Police Station in Mumbai. We find merit in the submission of Mr Kapil
Sibal, learned Senior Counsel that fairness in the administration of criminal
justice would warrant the exercise of the jurisdiction under Article 32 to
quash all other FIRs (save and except for the one under investigation in
Mumbai). However, we do so only having regard to the principles which
have been laid down by this Court in TT Antony. The filing of multiple
FIRs arising out of the same telecast of the show hosted by the petitioner
is an abuse of the process and impermissible. We clarify that the quashing
of those FIRs would not amount to the expression of any opinion by this
Court on the merits of the FIR which is being investigated by the NM
Joshi Marg Police Station in Mumbai.
52. We find no reason to entertain the subsequent Writ Petition40
which has been filed by the petitioner in respect of the FIR lodged at
Pydhonie Police Station (FIR 137 of 2020 dated 2 May 2020). The basis
on which the jurisdiction of this Court was invoked in the first Writ Petition
– the filing of multiple FIRs in various states – is absent in the subsequent
Writ Petition (Crl.) Diary No 11189 of 2020.  The petitioner would be at
liberty to pursue his remedies under the law in respect of the FIR. Any
recourse to such a remedy shall be considered on its own merits by the
competent court.
Directions
1 Writ Petition (Crl.) No 130 of 2020
53. Amendments as proposed are
allowed. The amendments shall
be carried out within one week.
(i)
The prayer for transfer of the investigation to the CBI is
rejected;
(ii)
The interim order of this Court dated 24 April 2020 by which
FIR 238 of 2020 dated 22 April 2020 was transferred from
the Police Station Sadar, District Nagpur City to NM Joshi
Marg Police Station in Mumbai is confirmed. The FIR which
has now been numbered as 164 of 2020 shall be investigated
by the NM Joshi Marg Police Station in Mumbai;
(iii)
We decline to entertain the prayer for quashing FIR 164 of
2020 (earlier FIR 238 of 2020) under Article 32 of the
Constitution.  The petitioner would be at liberty to pursue
such remedies as are available in law under the CrPC before
40 Writ Petition (Crl.) Diary No 11189 of 2020
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the competent forum. Any such application shall be
considered on its own merits by the competent court;
(iv)
In view of the law laid down by this Court in Subramanian
Swamy, we clarify that the above FIR does not cover the
offence of criminal defamation under Section 499 of the IPC
which offence will not form the subject matter of the
investigation. Hence, it is not necessary to address the prayer
for dealing with the constitutional challenge to the validity of
the said provision in these proceedings;
(v)
The following FIRs/complaints are quashed, following the
decision of this Court in TT Antony (explained subsequently)
that successive FIRs/complaints founded on the same cause
of action are not maintainable:
“•FIR No. 245 of 2020, dated 22 April 2020, registered at
Police Station Supela, District Durg, Chhattisgarh, under
sections 153-A, 295-A and 505 (2) of the Indian Penal Code
1860.
• FIR No. 180 of 2020, dated 23 April 2020, registered at
Police Station Bhilal Nagar, District Durg, Chhattisgarh,
under sections 153- A, 188, 290 and 505 (1) of the Indian
Penal Code 1860.
• FIR No. 176 of 2020, dated 22 April 2020, registered at
Police Station Civil Lines, District Raipur, Chhattisgarh,
under sections 153-A, 295-A and 505 (2) of the Indian Penal
Code 1860.
• Complaint dated 21 April 2020 by District Congress
Committee – Antagrah, Kanker, Chhattisgarh.
• Complaint dated 22 April 2020 by Pritam Deshmukh (adv.),
Durg District Congress Committee – to SHO
city PS Durg,
Chhattisgarh.
• Complaint dated 22 April 2020 by Suraj Singh Thakur,
State Vice President, Indian Youth Congress- to Sr. Police
Officer, Chirag Nagar, Ghatkopar East, Mumbai.
• Complaint dated 22 April 2020 – Pankaj Prajapti (party
worker of INC and ex-spokesperson NSUI) through counsel
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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Anshuman Shrivastavas – Superintendent of Police, Crime
Branch, Indore, Madhya Pradesh.
• Complaint dated 22 April 2020 – Balram Jakhad (adv.) –
to PS Shyam Nagar –u/s 153, 188, 505, 120B in Jaipur.
• Complaint by Jaswant Gujar – to SHO Bajaj Nagar PS,
Jaipur.
• Complaint dated 22 April 2020 by Fundurdihari, Ambikapur,
District Sarguja, Chhattisgarh – Rajesh Dubey, Chhattisgarh
State Congress Committee – to SHO Gandhi Nagar,
Ambikapur – u/s 153, 153A, 153B, 504, 505.
• Complaint dated 22 April 2020 in Telangana by Anil Kumar
Yadav, State President of Telangana Youth Congress – to
SHO Hussaini Alam – u/s 117, 120B, 153, 153A, 295A,
298, 500, 504, 505 and 506. Also 66A of the IT Act.
• Complaint dated 23 April 2020 by Anuj Mishra before
Kotwali, Urai, Tulsi Nagar.
• Complaint dated 22 April 2020 by Kumar Raja, VP, Youth
Congress, Jharkhand Congress Committee before Kotwali
Police Station, Upper Bazar, Ranchi.
• Complaint dated 22 April 2020 by Madhya Pradesh Youth
Congress.”
(vi)
The quashing of the FIRs and complaints listed out in (v)
above shall not amount to any expression of opinion by this
Court on the merits of the FIR which is under investigation
by the NM Joshi Marg Police Station in Mumbai;
(vii) No other FIR or, as the case may be, complaint shall be
initiated or pursued in any other forum in respect of the same
cause of action emanating from the broadcast on 21 April
2020 by the petitioner on R Bharat. Any
other FIRs or
complaints in respect of the same cause of action emanating
from the broadcast on 21 April 2020, other than the FIRs or
complaints referred to in (v) above are also held to be not
maintainable; and
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(viii) Liberty to the complainants to move this Court for directions
if it becomes necessary to do so.
2 Writ Petition (Crl) Diary No 11189 of 2020
54. The Writ Petition is dismissed with liberty to the petitioner to
pursue such remedies as are available in accordance with law.
3  (i) The protection granted to the petitioner on 24 April 2020 in
Writ Petition (Crl) Diary No 11006 of 202041 against coercive
steps is extended for a period of three weeks from the date
of this judgment to enable the petitioner to pursue the
remedies available in law;
  (ii)
The CP, Mumbai shall consider the request of the petitioner
for the provision of security at the residence of the petitioner
and at the business establishment in Mumbai, in accordance
with law. Based on the threat perception, police protection
may be provided if it is considered appropriate and for the
period during which the threat perception continues; and
(iii)
Nothing contained in the present judgment shall be
construed as an expression of opinion on the merits of the
allegations contained in the FIRs.
55. Writ Petition (Crl) No 130 of 2020 shall stand disposed of.
Writ Petition (Crl.) Diary No 11189 of 2020 shall stand dismissed with
the liberty which has been granted in the above segment. IA 48588 of
2020 filed by the state government is dismissed, leaving it open to the
investigating agency to urge its submissions before the competent court.
All other interim applications are disposed of in view of
the above
directions.
56. Pending application(s), if any, shall stand disposed of.
Kalpana K. Tripathy
Writ Petitions disposed of.
41 WP (Crl) No. 130 of 2020
ARNAB RANJAN GOSWAMI v. UNION OF INDIA AND ORS.
[DR DHANANJAYA Y CHANDRACHUD, J.]