AND WITH Writ Petition (Crl.) Diary No. 11189 of 2020 Signature Not Verified Digitally signed by CHETAN KUMAR Date: 2020.05.19 14:54:10 IST Reason: 1 JUDGMENT 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:

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:

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 4 which has been instituted by the petitioner before this Court under Article 32 of the Indian Constitution:

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. 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:

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:

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:

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.” 8 Consequently, this Court, by its interim order:

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:

11. The petitioner submits that:

“CP” 6 Renumbered as FIR 164 of 2020 at NM Joshi Marg Police Station in Mumbai. 10

(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:

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:

FIR 148 of 2020 15

(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:

14. The basis of the IA appears from the following averments:

(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 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:

(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:

Among the documents which have been annexed to the IA for amendment are copies of:

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 20 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 religion are responsible for the spread of Covid-19”. According to the FIR:

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 17 FIR 137 of 2020 21 “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 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:

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:

22. Mr Kapil Sibal, learned Senior Counsel appearing on behalf of the State of Maharashtra has, while opposing the petitions, urged that:

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:

24. Elaborating these submissions, Dr Singhvi submitted that:

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. 28 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:

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 29 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:

[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 25 (2010) 14 SCC 444 26 (2018) 1 SCC 330 34 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 truth 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 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 35 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 36 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.

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 37 State of West Bengal v Committee for Protection of Democratic Rights, West Bengal27 (“CPDR, West Bengal”), Justice DK Jain observed:

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 29 (2018) 10 SCC 753 39 “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:

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:

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:

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:

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 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 43 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 44 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 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 45 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 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) 46 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:

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 48 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 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 49 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 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 50 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.

Writ Petition (Crl.) Diary No 11189 of 2020 51 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 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. 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.

53  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 66 A 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 54

(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 41 WP (Crl) No. 130 of 2020 55 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.

…….………….…………………...........................J. [Dr Dhananjaya Y Chandrachud] …….…………………………...............................J. [M R Shah] New Delhi;

May 19, 2020.