On 15 May 2020, Hon'ble Justice Chandra Dhari Singh of the Allahabad High Court has granted anticipatory bail to Mr. Siddharth Varadarajan. Mr. Varadarajan, Editor, online news portal "The Wire", who had filed the instant application under Section 438 of the Code of Criminal Procedure, 1973.
Section 438 lays down the provision for Anticipatory bail and this provision can be invoked by a person who has a “reasonable apprehension” that he may be arrested for committing a nonbailable offense.
Background of the Case:
An FIR had been filed against Mr. Varadarajan at Kotwali Ayodhya Police Station under Sections 66D (Punishment for cheating by personation by using computer resource) & 67 (Punishment for publishing or transmitting obscene material in electronic form) of Information Technology Act 2000, Sections 188 (Disobedience to order duly promulgated by public servant) & 505(2) (Statements creating or promoting enmity, hatred or ill-will between classes) of Indian Penal Code, 1860, Section 54 (Punishment for false warning as to disaster) of Disaster Management Act 2005 and Section 3 of Epidemic Diseases Act 1897.
The complainant had lodged an FIR on April 01, 2020, under the aforementioned sections after a report was published by "The Wire" on March 31, 2020, titled as "Covid-19 Cases Spike in Nizamuddin Nehru Stadium in Delhi to Become Quarantine Centre", which was also tweeted by Mr. Varadarajan on March 31 and April 01, 2020.
It was alleged that these tweets were defamatory towards the Chief Minister of Uttar Pradesh.
The relevant portion of the tweet is reproduced below: -
"On the day the Tablighi Jamaat event was held. Yogi Adityanath insisted that a large fair planned for Ayodhya on the occasion of Ram Navami from March 25 to April 2 would proceed as usual while Acharya Paramhans said that Lord Ram would protect devotees from the coronavirus'.
One day after Modi announced the "curfew-like" national lockdown on March 24, Adityanath violated the official guidelines to take part in a religious ceremony in Ayodhya along with dozens of people."
Senior Counsel I. B. Singh appearing for Mr. Varadarajan submitted that the FIR was nothing but an attempt to muzzle free speech and the report in the Wire and on the Twitter handle by Mr. Varadarajan was based on statements of facts which were also covered by various other news publications such as Deccan Herald, The Print, NDTV and Economic Times.
Singh further contended that the said report was never denied by the Government of UP while alleging that the FIR was frivolous, malicious, and motivated in nature.
The learned Counsel also drew the attention of the Court to the fact that a small error in the report wherein the statement was wrongly attributed to the Chief Minister of U.P. was corrected as soon as it became known, even before the registration of the FIR. He also contended that any factual inaccuracies cannot be subject to criminal action in law.
To get the confidence of the Court, it was submitted that the said article and tweets are matters of record, so there is no possibility of tampering of evidence and there is no requirement of custodial interrogation. It was also alleged that the instant case filing of an FIR with cognizable and non-bailable offenses was only with the sole aim of using the threat of arrest to browbeat the applicant and “The Wire” into deleting the said article which shows the U.P. Government's approach on handling the Covid-19 crisis in a critical light.
For the State of UP, V.K. Shahi, Additional Advocate General and Jayant Singh Tomar, Additional Government Advocate had submitted that because of this article and tweet, there were several unfortunate communal incidents which destroyed the public peace, and cases were registered upon which actions were taken immediately by the vigilant activities and activeness of the district police.
To arrive at conclusion, the Court first examined the scope of Anticipatory bail and observed that,
“Section 438 Cr.P.C. contemplates an application to be made by person apprehending arrest of an accusation of having committed a nonbailable offense. It is indicative of the fact that the application for anticipatory bail is pivoted on an apprehension of arrest which invites the exercise of power under Section 438 of Cr.P.C. The expression "reason to believe" or reasonable apprehension of arrest, a term substitute for each other is the governing factor to let off a person on anticipatory bail where submission of charge-sheet, is an idle parade.”
The Court reasoned that Section 438 Cr.P.C. cannot be invoked unless there is some material on the basis of which the Court can come to the conclusion that the apprehension of the petitioner for the arrest is genuine.
On April 10, 2020, some policemen of the U.P. had gone to the Varadarajan's residence and served upon his wife a written notice under Section 41(A) of Cr.P.C. directing him to appear at Police Station Ayodhya at on 14.04.2020, which was not possible for him due to lockdown. Further notice under Section 41(A) was sent to him and the Court believed that this conduct of the UP Police was sufficient to create the apprehension of arrest in the mind of Mr. Varadarajan warranting grant of Anticipatory bail.
The Court has ordered that Mr. Siddharth Varadarajan, be released on bail on his executing a personal bond to the tune of Rs.2,00,000/- (Rupees Two Lakh) with two sureties each in the like amount to the satisfaction of the learned trial Court Concerned in case he is arrested under any of the above said Sections under which FIR is filed.
