The Supreme Court of India has recently passed an important judgment in the case of Arnab R. Goswami versus Union of India & Ors1. This decision attains significance in the criminal and constitutional law fields in view of the Supreme Court's multifaceted findings on various legal issues relating to journalistic freedom, quashing of FIRs, scope of and intervention under Article 32 of the Constitution of India, defamation, alleged biased investigation against the Police and transfer of criminal investigation.
Certain broadcasts on two TV channels - 'Republic TV' on 16 April 2020 and 'R Bharat' on 21 April 2020 in relation to an incident which took place in Palghar district in Maharashtra gave rise to lodging of multiple First Information Reports (FIRs) and criminal complaints against the Petitioner. The Petitioner is the Editor-in-chief of Republic TV and the managing director of a private company which owns and operates R Bharat. The Petitioner is also a news anchor in both the channels.
Several FIRs were lodged against the Petitioner alleging offences under Sections 153, 153A, 153B, 295A, 298, 500, 504, 506 and 120B of the Indian Penal Code, 1860 (IPC) in various States and Union Territories. Hence, the Petitioner moved a criminal writ petition before the Supreme Court under Article 32 of the Constitution of India against Union of India and other States, followed by a number of interim applications seeking various reliefs. In the State of Maharashtra, one FIR (Maharashtra FIR) which was lodged in Nagpur was transferred to Mumbai Police pursuant to Supreme Court's interim order.
The reliefs sought in the writ petition and the interim applications are broadly set out herein under:
- Quashing of all complaints and FIRs in multiple States and Union Territories;
- Direction that no cognisance should be taken of any FIR or complaint;
- Stay of investigation in the Maharashtra FIR due to unfair and impartial investigation by the Mumbai Police;
- Transfer of investigation in the Maharashtra FIR to the Central Bureau of Investigation (CBI) or any other investigative agency; and
- Declaration that Section 499 of the IPC is violative of Article 19(1)(a) of the Indian Constitution and hence unconstitutional.
Decision & Analysis
Law on filing of multiple FIRs and complaints.
The fundamental basis on which the jurisdiction of the Supreme Court was invoked under Article 32 of the Constitution of India, was the filing of multiple FIRs and complaints in various States and Union Territories arising out of the same cause of action. To elaborate the law on this subject, the Supreme Court placed reliance on the decision in TT Antony v State of Kerala2 (TT Antony). In TT Antony, it was 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. It was further held that once an FIR postulated by the provisions of Section 154 of Indian Criminal Procedure Code (CrPC) 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 further 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 CrPC or Articles 226/227 of the Constitution of India.
The Court relied upon the decision in Kari Choudhary v Mst. Sita Devi3, wherein the Court held that there cannot be two FIRs against the same accused in respect of the same case, but where there are rival versions of the FIRs with respect to the same incident, investigation needs to proceed in both the FIRs.
To supplement further, the Court also relied upon the decision in Upkar Singh v. Ved Prakash4, wherein the Court while discussing the purport of CrPC held that the decision in TT Antony would not preclude a filing of a second complaint in the same incident if filed as a counter complaint. This view was further reiterated in Babu Bhai v. State of Gujarat5, that when there are two FIRs with different versions or counter claim, investigation in both the FIRs have to be concluded.
Since in the present case, all the FIRs and the complaints which were lodged in diverse jurisdictions pertain to the same incident and are not counter claims, the Supreme Court was of the view that all the other FIRs except the Maharashtra FIR, can be quashed for being identical and abuse of process.
Quashing of FIRs, Journalistic freedom and Article 19 of the Constitution of India
The Petitioner argued that there are wider issues implicating the freedom of speech and expression of a journalist to air views which falls within the protective ambit of Article 19(1)(a) of the Constitution of India. The Petitioner, hence, requested the Court to laydown safeguards which protect the democratic interest in fearless and independent journalism.
The Supreme Court, while indicating that India's freedom will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal, held that the fundamental right is not absolute and is answerable to the legal regime enacted with reference to the provisions of Article 19(2) of the Constitution of India. The Court reiterated that 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. On the other hand, on the issue of multiple FIRs and complaints in various jurisdiction against the Petitioner, the Court held that subjecting a journalist to such multiple prosecutions arising out of the same cause of action would have a stifling effect on the freedom conferred under Article 19 of the Constitution of India. It was further held that such multiple prosecution cannot be an effective method of achieving the legislative state aim.
On an important note relating to the Maharashtra FIR, the Court held that a journalist in exercise of his right under Article 19(1) is not immune from an investigation by the Police and, thus, denied to interfere in the investigation.
Following the above principles, the FIRs and other complaints which arose out of the same cause of action were quashed except the Maharashtra FIR. The Supreme Court, thus, adopted a balanced approach in protecting the constitutional rights of a journalist in terms of multiple complaints and FIRs lodged against him on one hand and on the other, a balance was drawn between the exercise of a fundamental right under Article 19(1) and the investigation of an offence under CrPC.
Transfer of investigation from Mumbai Police to CBI
The main grounds of the Petitioner seeking transfer of investigation were, broadly, (a) lengthy interrogation; (b) nature of inquiries addressed to the Petitioner during interrogation; (c) allegations made by the Petitioner against the Commissioner of Police, Mumbai, and few others. To this, the Supreme Court held that the transfer of an investigation from Police to the CBI is not a matter of routine. Relying on various precedents, the Supreme Court observed, that the power of transfer of investigation is an "extraordinary power" to be used "sparingly" and "in exceptional circumstances".
The Court relied upon the decision in State of West Bengal v. CPDR, West Bengal6 (CPDR West Bengal), wherein it was held that issuing a direction to the CBI cannot be passed as a matter of routine or merely because a party has levelled some allegations against the local police. The Court further relied upon the decision in K.V.Rajendran v. Superintendent of Police, CBCID South Zone Chennai7 reiterating that such powers must be used only in exceptional circumstances. The Court held that the factor which may be considered is that the transfer is imperative to retain public confidence in the impartial functioning of the State agency. Thus, considering CPDR West Bengal, the Court held that mere allegations against the police do not constitute a sufficient basis to transfer the investigation.
The Court also relied upon the decision in Romila Thapar v. Union of India8 wherein it was held that an accused cannot ask for changing the investigating agency. The Court further relied upon the decision in P.Chidambaram v. Directorate of Enforcement9 wherein it was held that it is the investigation agency who can only decide the course of investigation. If the investigation does not violate any provision of law, it is the investigating agency who has the discretion in deciding the course of investigation which includes nature of questions and manner of investigation.
The Supreme Court also referred to the decision in Director, CBI v. Niyamadevi represented by its member K. Nandini10, wherein the 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.
In light of the consistent line of precedents and the tests laid down therein, the Court was unable to find any reason which would warrant the transfer of the investigation to the CBI, as sought by the Petitioner. Interestingly, the Supreme Court observed the following:
"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."
Constitutional challenge to defamation
On this issue, the Supreme Court relied upon the decision in Subramanian Swamy v. Union of India, Ministry of law11, wherein it was observed that in cases of defamation, neither can an FIR be filed nor a direction be issued under Section 156(3) of the CrPC and it can only be by way of a complaint which can be instituted by a person aggrieved. In view of the settled position of law, the Court clarified that the Maharashtra FIR cannot cover the offence of defamation and will not form a subject matter of investigation. Hence, it was not necessary to deal with the prayer of the constitutional challenge to defamation.
Quashing of FIR qua Article 32
The Supreme Court held that it would be inappropriate to exercise jurisdiction under Article 32 of the Constitution of India for the purpose of quashing the FIR. The Court categorically held that the issue whether the allegations contained in the FIR do or do not make any offence will not be decided under the jurisdiction of Article 32 of the Constitution of India. The Court held that the Petitioner has an equally efficacious remedy available before the High Court under Section 482 of CrPC and therefore, there is no reason to by-pass the procedure under the CrPC moreover when there are no exceptional grounds or reasons to entertain a petition under Article 32. Thus, while declining any reliefs under Article 32, the Supreme Court was of the opinion that the Petitioner must be relegated to avail remedies which are available under the CrPC before the competent court including the High Court. Interestingly, the Supreme Court while refusing to entertain the petition under Article 32 observed that the same should not be construed to mean that the petition under Article 32 is not maintainable.
This judgement has rightly summarised the legal precedents on various issues and once again confirmed the position of law. Below are some of the relevant key takeaways from this judgment:
- Journalistic freedom is not absolute and is subject to limitations stipulated in Article 19(2) of the Constitution of India;
- Freedom granted by Article 19 of the Constitution of India is not immune from criminal investigation;
- Multiple and successive FIRs and complaints against the same accused arising out the same cause of action can be quashed save and except when (a) the successive FIRs are in the nature of counter complaints; and (b) the FIRs have different versions and are not identical to each other;
- A petition under Article 32 of the Constitution of India seeking quashing of an FIR should not be entertained when an equally efficacious remedy is available before the High Court under Section 482 of CrPC. However, this should not be construed to mean that a petition under Article 32 is not maintainable.
- Transfer of investigation from a state agency to any other independent investigating agency like CBI can only be done under rare and exceptional circumstances. Mere allegations against the Police and a conflict of interest cannot be a ground for seeking transfer of investigation;
- An accused has no right to decide the investigating agency or the mode of investigation; and
- A case for defamation cannot proceed by way of an FIR or a direction issued under section 156(3) CrPC. It can be only instituted by way of a complaint lodged by none other than the aggrieved person.
1 Writ Petition (Crl) No. 130 of 2020 along with Writ Petition (Crl) D. No.1189 of 2020, decided on 19 May 2020
2 (2001) 6 SCC 181
3 (2002) 1 SCC 714
4 (2004) 13 SCC 292
5 (2010) 12 SCC 254
6 (2010) 3 SCC 571
7 (2013) 12 SCC 480
8 (2018) 10 SCC 753
9 (2019) 9 SCC 24
10 (1995) 3 SCC 601
11 (2016) 7 SCC 221
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