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Arrest must not be used as a punitive tool: Supreme Court

New Delhi: The Supreme Court said when power of arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power and noted that machinery of criminal justice has been relentlessly employed against the petitioner.

The top court made several more observations in its order, which was uploaded on Monday, while granting bail to Alt news co-founder Mohammed Zubair last week.

A bench of Justices D.Y. Chandrachud and A.S. Bopanna said arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty.

“Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power,” it noted.

The bench added that the criminal law and its processes ought not to be instrumentalised as a tool of harassment. “Section 41 of the CrPC as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual,” it said.

The bench said police officers are vested with the power to arrest individuals at various stages of the criminal justice process, including during the course of investigation. However, this power is not unbridled, it pointed out.

As counsel for Uttar Pradesh attempted to persuade the top court that the petitioner must be barred from tweeting when he is on bail, the bench said a blanket order directing the petitioner to not express his opinion – an opinion that he is rightfully entitled to hold as an active participating citizen – would be disproportionate to the purpose of imposing conditions on bail.

“The imposition of such a condition would tantamount to a gag order against the petitioner. Gag orders have a chilling effect on the freedom of speech,” said the bench.

The top court noted that bail conditions imposed by it must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them.

“The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed,” said Justice Chandrachud, who authored the judgment on behalf of the bench.

The top court had last week granted bail to Zubair in all the 6 FIRs registered by the Uttar Pradesh Police in different districts over his tweets and clubbed these FIRs with the Delhi FIR.

The bench said: “The machinery of criminal justice has been relentlessly employed against the petitioner. Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned above, the petitioner was subjected to multiple investigations across the country.”

The bench said Zubair will be trapped in a vicious cycle of the criminal process where the process has itself become the punishment. “It also appears that certain dormant FIRs from 2021 were activated as certain new FIRs were registered, thereby compounding the difficulties faced by the petitioner,” it added.

The top court disposed of Zubair’s plea by granting him bail in all the UP Police cases and also gave him liberty to move the Delhi High Court seeking the quashing of the cases. The top court clarified that its directions will apply to future cases, registered on the basis of tweets which were part of the previous FIRs.