Manas Dasgupta
NEW DELHI, May 15: Without making a comment on the merits of the case, the Supreme Court on Wednesday declared the arrest and remand to the police custody of the 74-year-old journalist and founder editor of online portal NewsClick Prabir Purkayastha under the draconian anti-terror law Unlawful Activities Prevention Act (UAPA) by the Delhi Police as “invalid in the eyes of law” and ordered his immediate release.
A bench of Justices BR Gavai and Sandeep Mehta said the remand copy was not provided in the case, which makes his arrest void. “There is no hesitation in the mind of the court that the grounds of arrest were not provided, which vitiates the arrest. The appellant is entitled to release from custody after the Pankaj Bansal case. The remand order is invalid,” said Justice Mehta.
The bench said neither Mr Purkayastha nor his designated counsel were provided the grounds of his arrest in writing. “The right to be informed about the grounds of arrest flows from Article 22(1) (an arrested person shall be informed of the grounds of arrest and allowed to consult a lawyer of his or her choice) of the Constitution and any infringement of this fundamental right would vitiate the process of arrest and remand,” Justice Mehta, who authored the judgment, held. The mere fact that a charge-sheet was filed in the case would not validate the illegality committed at the time of arrest and initial remand to police custody.
The top court had held that grounds of arrest must be provided in writing to the accused in its March judgment in the Pankaj Bansal case. The trial court will impose the bail conditions on Mr Purkayastha.
Additional Solicitor General (ASG) SV Raju, who argued in favour of the police, said while Mr Purkayastha’s arrest has been declared void, it may not stop them from exercising their correct powers to arrest. Justice Gavai replied, “Whatever you are permitted to do under the law, you are permitted.”
The Supreme Court had on April 30 questioned the Delhi Police for hastily producing Mr Purkayastha before the magistrate without informing his lawyer after his arrest. The top court had also found it surprising that the remand order was passed even before his lawyer received his remand application.
Senior lawyer Kapil Sibal, appearing for Mr Purkayastha, said he was arrested on October 3 and produced before the magistrate at 6 am the next day. Only legal aid lawyers and the additional public prosecutor were present, and Mr Purkayastha’s lawyer was not informed, he said. When Mr Purkayastha objected to this, the investigating officer informed his lawyer through telephone and the remand application was sent to him on WhatsApp, said Mr Sibal. The principles of natural justice require that Mr Purkayastha’s lawyer be present when the remand order is passed, the bench had asserted.
Mr Purkayastha was arrested on October 3 last under the anti-terror UAPA days after a New York Times investigation alleged that NewsClick had received funding from a network pushing Chinese propaganda. In a March charge-sheet that ran 8,000 pages including annexures, Delhi Police accused NewsClick and Mr Purkayastha of terror funding and promoting Chinese propaganda. It had also arrested NewsClick’s HR head Amit Chakravarty on October 3, but in January, a court allowed him to turn approver in the case.
The apex court held that the rule to communicate the grounds in writing would extend equally in the case of detentions. Justice Mehta said, like arrests, the grounds of detention should also be communicated in writing to a detainee. Any lapse would be a violation of Article 22(5) of the Constitution, which mandates that a person under detention should be communicated the grounds of the detention order and allowed to make a representation against the detention at the earliest opportunity.
Communication of grounds of arrest or detention in writing by the investigating agency or police was “sacrosanct and cannot be breached under any situation.” “Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal,” the Supreme Court declared.
Mr Purkayastha, who has been incarcerated for over six months, was accused of using Chinese funding to promote “anti-national propaganda” through digital media. Multiple journalist collectives had termed the raids at the homes of 46 journalists, editors, writers and professionals connected to NewsClick and seizure of their electronic devices, culminating in the arrest of its founder under the UAPA, as “especially chilling.”
Mr Purkayastha was arrested by the Delhi Police Special Cell on October 3, 2023 on the basis of a First Information Report (FIR) registered on August 17, 2023. The copy of the FIR was not uploaded in the public domain. Mr Purkayastha’s request to provide him a copy was ignored by the police.
He was given a copy of the FIR only after he was remanded to police custody by a Sessions Judge at 6 a.m. on October 4, 2023. The senior journalist’s lawyer, advocate Arshdeep Khurana, was informed about the grounds of arrest on October 5, that is, 24 hours after his client was remanded to police custody.
Justice Mehta said there was no “rhyme or reason” for not sending the remand application to Mr Khurana ahead of the early morning court hearing on October 4. Mr Purkayastha was represented by a legal aid lawyer at the remand hearing. The police team chose to inform Mr Khurana through WhatsApp about the remand order, that too an hour after the hearing.
In short, the Supreme Court concluded that Mr Purkayastha was left heavily handicapped when his personal liberty was hanging by a thread on October 4 morning. “This entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprive the accused of the opportunity to avail the services of the legal practitioner of his choice so as to oppose the prayer for police custody remand, seek bail and also to mislead the court,” Justice Mehta concluded in a scathing judgment.
Additional Solicitor General S.V. Raju, for the Delhi Police, had argued that Mr Purkayastha was “orally” informed about the grounds of his arrest. Senior advocate Kapil Sibal, for Mr Purkayastha, had countered that the power to arrest was not a discretionary one. “It should be supported by solid reasons. After all, a person’s liberty was taken away,” he had submitted.
Agreeing with Mr Sibal, the Bench quashed the journalist’s arrest, the subsequent orders of the trial court remanding him, and set aside an October 13, 2023 order of the Delhi High Court upholding the journalist’s incarceration.
However, the court said Mr Purkayastha should furnish bail bonds for his release as a charge-sheet had already been filed in the trial court by the police in the case. “Though we would have been persuaded to direct the release of the appellant without requiring him to furnish bonds or security, a charge-sheet has been filed. We feel it appropriate to direct the appellant to be released from custody on his furnishing bail bonds to the trial court,” the Supreme Court directed.
