ARNAB RANJAN GOSWAMI versus UNION OF INDIA AND ORS.

[2020] 8 S.C.R.

ARNAB RANJAN GOSWAMI

UNION OF INDIA AND ORS.

(Writ Petition (Criminal) No. 130 of 2020)

MAY 19, 2020

[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Constitution of India:C

CArts. 19(1)(a), 19(2) and 32 – Writ Petition – Seeking quashingof various FIRs filed under the provisions of ss. 153, 153A, 153B,295A, 298, 500, 504 and 506 IPC against media journalist –Held: All the FIRs or complaints have been lodged in diversejurisdictions arising out of same cause of action i.e. broadcast of aprogramme – Journalistic freedom is protected by Art. 19(1)(a) –DThe right of speech and expression of journalist u/Art. 19(1)(a) isno higher than such right of citizen – It is amenable to restrictionu/Art. 19(2) – Petitioner is not immune from investigation in FIR –However, the reasonable restriction on fundamental right mustcomport with the proportionality standard i.e. the measure adoptedEmust be the least restrictive to effectively achieve the legitimate aim– Subjecting an individual to numerous proceedings in differentjurisdictions on the basis of same cause of action cannot be said tobe least restrictive – Therefore, except one FIR at Mumbai, all otherFIRs which are in respect of the same incident are quashed as theyconstitute clear abuse of process of law – The writ petition is notFentertained in respect of relief of quashing the FIR at Mumbai asefficacious remedies are available under Cr. P.C. including theremedy before High Court u/s. 482 Cr. P.C.

Investigation:

Transfer of investigation – From local police to CBI – Held:GTransfer of investigation to CBI is not matter of routine – It is an‘extraordinary power’ to be used ‘sparingly’ and ‘in exceptionalcircumstances’ – Mere allegations against police do not constitutea sufficient basis for transfer – It must be ‘imperative’ to retainpublic confidence in the impartial working of the State agencies –HAllegation by the person under investigation regarding mode,

manner and line of interrogation and unsubstantiated allegation ofa conflict of interest against police conducting investigation, cannotbe the basis to transfer the investigation.

Code of Criminal Procedure, 1973:

s. 199 – Prosecution for defamation – Held: In respect ofdefamation neither can an FIR be filed nor can direction be issuedu/s. 156 (3) Cr. P.C. – It is only complaint which can be institutedby the aggrieved person.

Disposing of Writ Petitions, the Court

HELD: 1.1. The fundamental basis on which thejurisdiction of this Court has been invoked under Article 32 isthe filing of multiple FIRs and complaints in various States arisingfrom the same cause of action. All the FIRs or complaints whichhave been lodged in diverse jurisdictions arise out of one andthe same incident - the broadcast by the petitioner on 21 April2020 on R Bharat. The broadcast is the foundation of theallegation that offences have been committed under the provisionsof Sections 153, 153A, 153B, 295A, 298, 500, 504 and 506 of theIPC. The several complaints are worded in identical terms andleave no manner of doubt that an identity of cause of actionunderlies the allegations leveled against the petitioner on thebasis of the programme which was broadcast on 21 April 2020.Moreover, the language, content and sequencing of paragraphsand their numbering is identical. [Paras 28 and 31][252-C; 256-A-C]1.2 Article 32 of the Constitution constitutes recognitionof the constitutional duty entrusted to this Court to protect thefundamental rights of citizens. The exercise of journalistic freedomlies at the core of speech and expression protected by Article19(1)(a). The petitioner is media journalist. The airing of viewson television shows which he hosts is in the exercise of hisfundamental right to speech and expression under Article19(1)(a). Country’s freedoms will rest safe as long as journalistscan speak to power without being chilled by threat of reprisal.The exercise of that fundamental right is not absolute and isanswerable to the legal regime enacted with reference to the

Aprovisions of Article 19(2). But to allow journalist to be subjectedto multiple complaints and to the pursuit of remedies traversingmultiple States and jurisdictions when faced with successive FIRsand complaints bearing the same foundation has stifling effecton the exercise of that freedom. This will effectively destroy thefreedom of the citizen to know of the affairs of governance in theBnation and the right of the journalist to ensure an informed society.The right of journalist under Article 19(1)(a) is no higher thanthe right of the citizen to speak and express. But as society onemust never forget that one cannot exist without the other. Freecitizens cannot exist when the news media is chained to adhereCto one position. [Para 32][256-E-G; 257-A]1.3 It is firmly established that any reasonable restrictionon fundamental rights must comport with the proportionalitystandard, of which one component is that the measure adoptedmust be the least restrictive measure to effectively achieve theDlegitimate state aim. Subjecting an individual to numerousproceedings arising in different jurisdictions on the basis of thesame cause of action cannot be accepted as the least restrictiveand effective method of achieving the legitimate state aim inprosecuting crime. The manner in which the petitioner has beensubjected to numerous FIRs in several States, besides the UnionETerritories of Jammu and Kashmir on the basis of identicalallegations arising out of the same television show would leaveno manner of doubt that the intervention of this Court is necessaryto protect the rights of the petitioner as citizen and as journalistto fair treatment (guaranteed by Article 14) and the liberty toFconduct an independent portrayal of views. In such situation, torequire the petitioner to approach the respective High Courtshaving jurisdiction for quashing would result into multiplicity ofproceedings and unnecessary harassment to the petitioner, whois journalist. [Para 33][257-B-E]

G1.4 However, the petitioner, in the exercise of his rightunder Article 19(1)(a), is not immune from an investigation intothe 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 afundamental right under Article 19(1)(a) and the investigationH

for an offence under the CrPC. All other FIRs in respect of thesame incident constitute clear abuse of process and must bequashed. Leaving open, however, the investigation in respect ofthe FIR 238 of 2020 dated 22 April 2020 transferred from thePolice Station Sadar, District Nagpur City to NM Joshi MargPolice Station in Mumbai. [Paras 31 and 34][256-D; 257-F-H]

TT Antony v State of Kerala (2001) 6 SCC 181 : [2001]3 SCR 942; Upkar Singh v Ved Prakash (2004) 13 SCC292; Ram Lal Narang v State (Delhi Administration)(1979) 2 SCC 322 : [1979] 2 SCR 923; Kari Choudharyv Mst. Sita Devi (2002) 1 SCC 714 : [2001] 5 Suppl.SCR 588; State of Bihar v JAC Saldanha (1980) 1 SCC554 : [1980] 2 SCR 16; Babubhai v State of Gujarat(2010) 12 SCC 254 : [2010] 10 SCR 651 – relied on.

Chirra Shivraj v State of Andhra Pradesh (2010) 14SCC 444 : [2010] 15 SCR 673; Chirag M Pathak vDollyben Kantilal Patel (2018) 1 SCC 330 : [2017] 14SCR 424 – referred to.

2. Section 199 of the CrPC stipulates prosecution fordefamation. In case of criminal defamation, neither can an FIRbe filed nor can direction be issued under Section 156 (3) of theCrPC and it is only complaint which can be instituted by personaggrieved. Therefore, the FIR which is under investigation atthe NM Joshi Marg Police Station in Mumbai does not and cannotcover any alleged act of criminal defamation. [Paras 45, 46and 47][206-E; 264-E; 265-D-E]

3.1 It would be inappropriate for the court to exercise itsjurisdiction under Article 32 of the Constitution for the purposeof quashing FIR 164 of 2020 under investigation at the NM JoshiMarg Police Station in Mumbai. The checks and balances toensure the protection of the petitioner’s liberty are governed bythe CrPC. Despite the liberty being granted by this Court to thepetitioner on 24 April 2020 by its interim order, it is an admittedposition that the petitioner did not pursue available remedies inthe law, but sought instead to invoke the jurisdiction of this Court.Whether the allegations contained in the FIR do or do not make

Aout any offence as alleged will not be decided in pursuance of thejurisdiction of this Court under Article 32, to quash the FIR. Thepetitioner must be relegated to the pursuit of the remediesavailable under the CrPC. The petitioner has an equallyefficacious remedy available before the High Court. [Para 49][266-G-H; 267-A-B]B

3.2 It should not be construed that petition under Article32 is not maintainable. But when the High Court has the powerunder Section 482, there is no reason to by-pass the procedureunder the CrPC and there is no exceptional grounds or reasonsto entertain the petition under Article 32. There is clearCdistinction between the maintainability of petition and whetherit should be entertained. In situation like that in the presentcase, this Court would not like to entertain the petition underArticle 32 for the relief of quashing the FIR being investigated atthe NM Joshi Police Station in Mumbai which can be consideredDby the High Court. Therefore, the petitioner must be relegatedto avail of the remedies which are available under the CrPC beforethe competent court including the High Court. [Para 49][267-C-

4.1 The transfer of an investigation to the CBI is not aEmatter of routine. This is an “extraordinary power” to be used“sparingly” and “in exceptional circumstances”. One factor thatcourts may consider is that such transfer is “imperative” to retain“public confidence in the impartial working of the State agencies.”However, mere allegations against the police do not constitute asufficient basis to transfer the investigation. The accused “doesFnot have say in the matter of appointment of investigatingagency”.[Paras 36 and 37][258-D; 259-G; 260-A-B]

State of West Bengal v Committee for Protection ofDemocratic Rights, West Bengal (2010) 3 SCC 571 :[2010] 2 SCR 979 – followed.

K V Rajendran v Superintendent of Police, CBCID SouthZone, Chennai (2013) 12 SCC 480 : [2013] 9 SCR199; Romila Thapar v Union of India (2018) 10 SCC753 : [2018] 11 SCR 951; Narmada Bai v State ofGujarat (2011) 5 SCC 79 : [2011] 5 SCR 729; Sanjiv

Rajendra Bhatt v Union of India (2016) 1 SCC 1 :[2015] 12 SCR 498; Sivakumar v Union of India(2018) 7 SCC 365 : [2018] 6 SCR 522; Divine RetreatCentre v State of Kerala (2008) 3 SCC 542 : [2008] 4SCR 701 – relied on.

4.2 The petitioner had requested for and consented to thetransfer of the investigation of the FIR from the Police StationSadar, District Nagpur City to the NM Joshi Marg Police Stationin Mumbai. He did so because an earlier FIR lodged by him atthat police station was under investigation. The petitioner nowseeks to pre-empt an investigation by the Mumbai police. Thebasis on which the petitioner seeks to achieve this is untenable.An accused person does not have choice in regard to the modeor manner in which the investigation should be carried out or inregard to the investigating agency. The line of interrogation eitherof the petitioner or of the CFO cannot be controlled or dictatedby the persons under investigation/interrogation. So long as theinvestigation does not violate any provision of law, theinvestigation agency is vested with the discretion in directingthe course of investigation, which includes determining the natureof the questions and the manner of interrogation. Theinvestigating agency is entitled to decide “the venue, the timingsand the questions and the manner of putting such questions”during the course of the investigation. Courts must refrain frompassing comments on an ongoing investigation to extend to theinvestigating agencies the requisite liberty and protection inconducting fair, transparent and just investigation. The lengthof the investigation or the nature of the questions addressed tothe petitioner and the CFO during the interrogation cannot weighin transferring the investigation. The investigating agency isentitled to determine the nature of the questions and the periodof questioning. The Petitioner was summoned for investigationon one day. [Paras 39, 40 and 41][261-B-D; 261-G-H; 262-A-B;262-E-F]

P. Chidambaram v Directorate of Enforcement (2019)9 SCC 24 : [2019] 12 SCR 172; State of Bihar v P PSharma (1992) Suppl. 1 SCC 222 : [1991] 2 SCR 1;Dukhishyam Benupani, Asst. Director, Enforcement

228SUPREME COURT REPORTS

ADirectorate (FERA) v Arun Kumar Bajoria (1998) 1 SCC52 : [1997] 5 Suppl. SCR 566; Director, Central Bureauof Investigation v Niyamavedi represented by its MemberK Nandini, Advocate (1995) 3 SCC 601 : [1995] 3 SCR196 – relied on.

B4.3 The allegation of the Petitioner that there is conflictof interest arising out of the criticism by him of the alleged failureof the State Government to adequately probe the incident atPalghar is not valid. The investigation of the Palghar incident isbeyond the territorial jurisdiction of the Mumbai police. Thepetitioner was interrogated on 27 April 2020. The allegationsCwhich he leveled against the Commissioner of Police, Mumbaiwere in the course of television programme on 28 April 2020relayed on R Bharat at 1900 hrs. No transfer of investigation canbe ordered “merely because party has levelled some allegationsagainst the local police.” Accordingly, leveling such allegationsDwould not by itself constitute sufficient ground for the transferof the investigation. [Paras 41 and 42][262-G; 263-A-C]4.4 The interview given by the complainant to arepresentative of R Bharat does not furnish valid basis in lawfor an inference that the investigation is tainted or as warrantingEa transfer of investigation to the CBI. The Government ofMaharashtra has moved an application before this Court (affirmedby the DCP, Zone-3) seeking appropriate directions to insulatethe investigating agency “from any pressure, threat or coercionfrom the petitioner” and to enable it to discharge its lawful dutiesin fair and transparent manner. Based on the views tweeted byFR Bharat on social media, it is the Maharashtra police which isnow claiming restraining order against the petitioner. Theinvestigating agency has placed on the record what it believes isan attempt by the petitioner to discredit the investigation bytaking recourse to the social media and by utilizing the newsGchannels which he operates. Social media has become anoverarching presence in society. To accept the tweets by thepetitioner and the interview by the complainant as justificationto displace lawfully constituted investigation agency of its

jurisdiction and duty to investigate would have far-reachingconsequences for the federal structure. [Para 43][263-C-G]

4.5 There is no reason that warrants transfer of theinvestigation to the CBI. An individual under investigation has alegitimate expectation of fair process which accords with law.The displeasure of an accused person about the manner in whichthe investigation proceeds or an unsubstantiated allegation (asin the present case) of conflict of interest against the policeconducting the investigation must not derail the legitimate courseof law and warrant the invocation of the extraordinary power ofthis Court to transfer an investigation to the CBI. Courts assumethe extraordinary jurisdiction to transfer an investigation inexceptional situations to ensure that the sanctity of theadministration of criminal justice is preserved. While no inflexibleguidelines are laid down, the notion that such transfer is an“extraordinary power” to be used “sparingly” and “in exceptionalcircumstances” comports with the idea that routine transferswould belie not just public confidence in the normal course of lawbut also render meaningless the extraordinary situations thatwarrant the exercise of the power to transfer the investigation.Having balanced and considered the material on record as wellas the averments of and submissions urged by the petitioner, nocase of the nature which falls within the ambit of the testsenunciated in the precedents of this Court has been establishedfor the transfer of the investigation. [Para 44][263-G-H; 264-A-D]

Subramanian Swamy v Union of India, Ministry of Law(2016) 7 SCC 221 : [2016] 3 SCR 865 – relied on.

5. There is no reason to entertain the subsequent WritPetition which has been filed by the petitioner in respect of theFIR lodged at Pydhonie Police Station (FIR 137 of 2020 dated 2May 2020). The basis on which the jurisdiction of this Court wasinvoked in the first Writ Petition – the filing of multiple FIRs invarious states – is absent in the subsequent Writ Petition (Crl.)Diary No 11189 of 2020. The petitioner would be at liberty topursue his remedies under the law in respect of the FIR. Any

[2020] 8 S.C.R.

Arecourse to such remedy shall be considered on its own meritsby the competent court. [Para 52][268-B-D]

CRIMINAL ORIGINAL JURISDICTION: Writ PetitionG(Criminal) No. 130 of 2020.

Under Article 32 of the Constitution of IndiaWith

W.P. (Crl.) Diary No. 11189 of 2020.

Tushar Mehta, SG, S.C. Verma, Adv. Gen., Manoj Kumar Singh,Ashok Basoya, AAGs, Harish Salve, Siddharth Bhatnagar, Kapil Sibal,Dr. Abhishek Manu Singhvi, Dr. Manish Singhvi, K.V. Vishwanathan,Sr. Advs., Saket Shukla, Mrinal Ojha, Ms. Malvika Trivedi, VasanthRajasekaran, Debarshi Dutta, Rajat Pradhan, Ishaan Chhaya, HarshulSingh, Ms. Reshma Ravipati, Ms. Pragya Baghel, Rahul Chitnis, SachinPatil, Varun K. Chopra, Adit Pujari, Sumeer Sodhi, Ashok Basoya, VarunTankha, Varun Chopra, Aman Nandrajog, Sandeep Jha, Sumeer Sodhi,S. Hariharan, Ms. Jaikriti Sinh Jadeja, Reepak Kansal, Harisha S.R.,Advs. for the appearing parties.

The Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J.

Writ Petition (Crl) No 130 of 2020

1. The petitioner is the Editor-in-Chief of an English televisionnews channel, Republic TV. He is also the Managing Director of ARGOutlier Media Asianet News Private Limited which owns and operatesa Hindi television news channel by the name of R Bharat. The petitioneranchors news shows on both channels.

2. On 16 April 2020, broadcast took place on Republic TV. Thiswas followed by broadcast on R Bharat on 21 April 2020. Thesebroadcasts led to the lodging of multiple First Information Reports[1] andcriminal complaints against the petitioner. They have been lodged in theStates of Maharashtra, Chhattisgarh, Rajasthan, Madhya Pradesh,Telangana and Jharkhand as well as in the Union Territories of Jammuand Kashmir. In the State of Maharashtra, an FIR was lodged at PoliceStation Sadar, District Nagpur City. The details of this FIR are:

“Maharashtra

FIR No. 238 of 2020, dated 22 April 2020, registered at PoliceStation Sadar, District Nagpur City, Maharashtra, under Sections153, 153-A, 153-B,295-A, 298, 500, 504(2), 506, 120-B and 117of the Indian Penal Code 1860.”

Apart from the above FIR, as many as fourteen other FIRs andcomplaints have been lodged against the petitioner, of which the detailsare extracted below:

A“• FIR No. 245 of 2020, dated 22 April 2020, registered at PoliceStation Supela, District Durg, Chhattisgarh, under sections 153-A, 295-A and 505 (2) of the Indian Penal Code 1860.

• FIR No. 180 of 2020, dated 23 April 2020, registered at PoliceStation Bhilal Nagar, District Durg, Chhattisgarh, under sectionsB153- A, 188, 290 and 505 (1) of the Indian Penal Code 1860.• FIR No. 176 of 2020, dated 22 April 2020, registered at PoliceStation Civil Lines, District Raipur, Chhattisgarh, under sections153-A, 295-A and 505 (2) of the Indian Penal Code 1860.

• Complaint dated 21 April 2020 by District Congress CommitteeC– Antagrah, Kanker, Chhattisgarh.

• Complaint dated 22 April 2020 by Pritam Deshmukh (adv.), DurgDistrict Congress Committee – to SHO city PS Durg,Chhattisgarh.

D• Complaint dated 22 April 2020 by Suraj Singh Thakur, StateVice President, Indian Youth Congress- to Sr. Police Officer, ChiragNagar, Ghatkopar East, Mumbai.

• Complaint dated 22 April 2020 – Pankaj Prajapti (party workerof INC and ex-spokesperson NSUI) through counsel AnshumanShrivastavas – Superintendent of Police, Crime Branch, Indore,EMadhya Pradesh.

• Complaint dated 22 April 2020 – Balram Jakhad (adv.) – to PSShyam Nagar –u/s 153, 188, 505, 120B in Jaipur.

• Complaint by Jaswant Gujar – to SHO Bajaj Nagar PS, Jaipur.F• Complaint dated 22 April 2020 by Fundurdihari, Ambikapur,District Sarguja, Chhattisgarh – Rajesh Dubey, Chhattisgarh StateCongress Committee – to SHO Gandhi Nagar, Ambikapur – u/s153, 153A, 153B, 504, 505.

• Complaint dated 22 April 2020 in Telangana by Anil Kumar Yadav,GState President of Telangana Youth Congress – to SHO HussainiAlam – u/s 117, 120B, 153, 153A, 295A, 298, 500, 504, 505 and506. Also 66A 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, YouthCongress, Jharkhand Congress Committee before Kotwali PoliceStation, Upper Bazar, Ranchi.

• Complaint dated 22 April 2020 by Madhya Pradesh YouthCongress.”

3. The genesis of the FIRs and complaints originates in thebroadcasts on Republic TV on 16 April 2020 and R Bharat on 21 April2020 in relation to an incident which took place in Gadchinchle village ofPalghar district in Maharashtra. During the course of the incident whichtook place on 16 April 2020, three persons including two sadhus werebrutally killed by mob, allegedly in the presence of the police and forestguard personnel. The incident was widely reported in the print andelectronic media. The petition states that video recording of the incidentis available in the public domain. In his news show titled “Poochta haiBharat” on 21 April 2020 on R Bharat, the petitioner claims to haveraised issues in relation to the allegedly tardy investigation of the incident.The segment of the news broadcast is available for public viewing onlineat:

https://www.youtube.com/watch?v=C2i4MMpKu9I

4. The viewpoint which the petitioner claims to have put acrossduring the course of the broadcast, is described in the following extractfrom the Writ Petition which has been instituted by the petitioner beforethis Court under Article 32 of the Indian Constitution:

“A review of the above debate would show that its thrust was toquestion the tardy investigation, inconsistent versions of theauthorities and the administration and the State Government’ssilence on the Palghar incident given that the unfortunate incidenthappened in Maharashtra which is presently under rule of analliance government jointly formed by Shiv Sena, the Congressand the Nationalist Congress Party. The debate highlighted themanner in which the incident was being portrayed by the authorities,including the glaring fact that the incident occurred in the presenceof numerous police officials which fact was initially suppressed.”

5. The petitioner claims that following the broadcast, “a well-coordinated, widespread, vindictive and malicious campaign” waslaunched against him by the Indian National Congress[2] and its activists.2 “INC”

AThe campaign, he alleges, was carried out online through news reportsand tweets indicating that members of the INC had filed multiplecomplaints simultaneously against the petitioner before various policestations seeking the registration of FIRs and an investigation into offencesalleged to have been committed by him under Sections 153, 153A, 153B295A, 298, 500, 504, 506 and 120B of the Indian Penal Code 1860[3]. ABcampaign for the arrest of the petitioner was allegedly launched on socialmedia, using the hashtag:

#ArrestAntiIndiaArnab

6. The petitioner submitted, in the course of his pleadings, that allCthe complaints and FIRs have incidentally been lodged in States wherethe governments which were formed owe allegiance to the INC andthat he believes that the law enforcement machinery was being set inmotion with an ulterior motive. To substantiate this, the petitioner refersto an incident which allegedly took place on 23 April 2020, while he wasreturning by car from his studio at Worli, Mumbai accompanied by hisDspouse between 12:30 and 1:00 am. His car was confronted by twoindividuals on motor-cycle. Confronted by the security personnel ofthe petitioner, the two individuals on the motor-cycle are alleged to havedisclosed their identity as members of the INC. An FIR was registeredat the behest of the petitioner at NM Joshi Marg Police Station in MumbaiEin which the details of the alleged attack on him have been set out.

7. The petitioner denies that he has propagated views of acommunal nature in the course of the news broadcasts which gave riseto the institution of numerous complaints. Asserting his fundamental rightto the freedom of speech and expression under Article 19(1)(a) of theFConstitution, the petitioner has moved this Court under Article 32 for theprotection of those rights. The reliefs which have been sought are:

(i)Quashing all the complaints and FIRs lodged against thepetitioner in multiple States and Union Territories;

(ii)A writ direction that no cognisance should be taken of anyGcomplaint or FIR on the basis of the cause of action whichforms the basis of the complaints and FIRs which have ledto the present writ proceedings; and

(iii) direction to the Union Government to provide adequatesafety and security to the petitioner and his family as well asto his colleagues at Republic TV and R Bharat.

8. While entertaining the Writ Petition on 24 April 2020, this Courtheard submissions by Senior Counsel: on behalf of the petitioner byMr Mukul Rohatgi and Mr Siddhartha Bhatnagar; on behalf of the Stateof Maharashtra by Mr Kapil Sibal; on behalf of the State of Chhattisgarhby Mr Vivek Tankha; and on behalf of the State of Rajasthan byDr Abhishek Manu Singhvi. Having heard the rival submissions, thisCourt noted in its interim order that the order which it intended to passshould strike balance between the following governing principles:

(i)The need to ensure that the criminal process does not assumethe character of vexatious exercise by the institution ofmultifarious complaints founded on the same cause inmultiple States;

(ii)The need for the law to protect journalistic freedom withinthe ambit of Article 19(1)(a) of the Constitution;

(iii)The requirement that recourse be taken to the remediesavailable to every citizen in accordance with the Code ofCriminal Procedure 1973;

(iv)Ensuring that in order to enable the citizen to pursue legalremedies, protection of personal liberty against coercivesteps be granted for limited duration in the meantime;

(v)The investigation of an FIR should be allowed to take placein accordance with law without this Court deploying itsjurisdiction under Article 32 to obstruct the due process oflaw; and

(vi)Assuaging the apprehension of the petitioner of threat tohis safety and the safety of his business establishment.

9. Learned Senior Counsel appearing on behalf of the petitionerGapprised this Court, on instructions, that the petitioner had no objectionto the transfer of FIR 238 of 2020 which was lodged at Police StationSadar, District Nagpur City to NM Joshi Marg Police Station in Mumbaifor the purpose of investigation. Mr Kapil Sibal, learned Senior Counselappearing on behalf of the State of Maharashtra similarly had no objectionto this course of action. This is recorded specifically in the order passedHby this Court on 24 April 2020 in the following terms:

A“9 The Court was apprised by Mr Mukul Rohatgi, learned seniorcounsel, on seeking instructions, that the petitioner would have noobjection if the FIR which has been lodged at Nagpur is transferredfor the purpose of investigation to the N M Joshi Marg PoliceStation, Mumbai, where the petitioner has lodged an FIR on 23April 2020. The FIR by the petitioner is in relation to an incidentBwhich took place at midnight, during the course of which, he andhis spouse were obstructed by two persons and an alleged tohave been subjected to an assault, while returning home from thestudio.

10 Mr Sibal has indicated that there should be no objection to theCtransfer of the FIR which has been lodged at Nagpur to Mumbai.”

Consequently, this Court, by its interim order:

(i)Transferred FIR 238 of 2020 lodged at Police Station Sadar,District Nagpur City to the NM Joshi Marg Police Station inDMumbai with clarification that the petitioner shall cooperatein the investigation;

(ii)Stayed further proceedings arising out of the complaints andFIRs other than the one which had been instituted at PoliceStation Sadar, District Nagpur City and stood transferred;

E(iii) Allowed the investigation to proceed in FIR 238 of 2020 whichwas transferred from Police Station Sadar, District NagpurCity to the NM Joshi Marg Police Station in Mumbai;

(iv) Protected the petitioner against coercive steps arising out ofand in relation to the above FIR, in relation to the telecastFdated 21 April 2020;

(v)Granted liberty to the petitioner to move an application foranticipatory bail before the Bombay High Court under Section438 of the Code of Criminal Procedure 1973[4] and to pursuesuch other remedies as are available in law. It was clarifiedGthat any such application shall be considered on its own meritsby the competent court;

(vi) Stayed further proceedings in respect of any other FIR, oras the case may be, criminal complaints which have been

filed or which may thereafter be filed with respect to thesame incident; and

(vii) Directed the Commissioner of Police[5], Mumbai to considerthe request of the petitioner for being provided with securityat his residence and at the business establishment.

10. Following the interim order of this Court, several interimapplications were filed in the course of the proceedings. The details ofeach of the IAs are necessary to facilitate our eventual analysis of thecase:

IA No 48585 of 2020: filed by the petitioner

11. The petitioner submits that:

(i)The Mumbai police is not conducting fair and impartialinvestigation in relation to FIR 238 of 2020[6] which has beentransferred from Police Station Sadar, District Nagpur Cityto NM Joshi Marg Police Station in Mumbai for investigation;

(ii)The manner in which the investigation has been conductedby the Mumbai police leads to the “inescapable conclusion”that the authorities “harbor grave malice and mala fideintention” against the petitioner;

(iii)The investigation is politically motivated and has beenconducted with “a pre-determined and pre-meditatedobjective” to arm-twist, harass and humiliate the petitionerand his family and to diminish his right to free speech andexpression under Article 19(1)(a) of the Constitution;

(iv)Since the petitioner’s news channel is questioning thecomplicity of the Maharashtra police in the Palghar incidentand the police fall under the administration and control ofthe State government (ruled by an alliance government ofthe INC), there is clear conflict of interest in the investigationby the Mumbai police; and

(v)It is necessary that the investigation is stayed to prevent anymiscarriage of justice. These apprehensions are sought tobe established on the basis of the following averments:

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

(a) On 25 April 2020, the petitioner was served with noticeunder Section 41(a) of the Code of Criminal Procedure1973[7] summoning him to the police station on 26 April2020;

(b) On 26 April 2020, the petitioner expressed hiswillingness to appear before the Investigating Officer[8]through Video Conferencing[9];

(c) Rejecting the above request, the IO called upon thepetitioner by summons dated 26 April 2020 to bephysically present at NM Joshi Marg Police Station inMumbai on 27 April 2020;

(d) On 27 April 2020, the petitioner was questioned withouta break for nearly twelve hours during which he wasnot allowed to keep possession of his mobile phone orto wear his personal fitness band;

(e) During the course of the investigation, the petitioner wasinformed by the Mumbai police that the complainant DrNitin Kashinath Raut, who is Cabinet Minister in theMaharashtra government and working President ofthe INC, had filed supplementary statement indicatingwhen he had been provided with clip of the broadcast;

(f) substantial bulk of the questions during the investigationwas in relation to small segment comprising fifteenseconds out of total broadcast of fifty-two minutes;

(g) During the course of the investigation, the petitioner wasFasked by the IO whether he had defamed or malignedthe President of the INC in the course of the broadcaston 21 April 2020;

(h) FIR 164 of 2020 is not based on complaint by thePresident of the INC and hence, it is inconceivable asGto how the IO could have questioned the petitioner onan alleged act of defamation which he, in any event,denies;

7 “CrPC”8 “IO”H9 “VC”

(i) Tweets made on the social media by members of theINC during and around the time of the investigationindicate that the Mumbai police was relying on real timeinformation during the course of the interrogation by“their political masters”;

(j) Questions posed to the petitioner during the course ofthe investigation have no nexus to FIR 164 of 2020.The questions which were posed included the following:

“(i) Corporate structure of the Petitioner’s company,ARG Outlier Media Asianet Private Limited (“ARG”)including its board of directors. ARG owns and operatesRepublic TV and R. Bharat.

(ii) Process of obtaining broadcasting licenses by thenews channels of the Petitioner.

(iii) Location of archives of Petitioner’s news channels;whether the Hindi channel of the Petitioner, R. Bharatis based outside or inside Maharashtra.

(iv) Does the Petitioner’s news channel send recordingsof news reports to the Central Government (thisquestion was asked multiple times.)

(v) Process of selecting panelists for debates aired onPetitioner’s news channels. Are the panelists paidremuneration by the Petitioner’s news channel for thispurpose.

(vi) Does the Petitioner own the house in which he iscurrently staying or pays rent.”

(k)The complainant, Dr Nitin Kashinath Raut was interviewedon 29 April 2020 by reporter of Republic TV in regard tothe contradictions between the statement in the FIR and hissubsequent supplementary statement as to the place wherehe had watched the video clip. In response to the queryposed to him in the interview, the complainant stated:

“There is no need to be confused over this point,whatever I have mentioned in my statement, it is true.After watching at home, I also got clip, which was

sent to me from my party office. When I say that Iwatched it earlier, it’s the truth, and later I watched aclip, which is mentioned in the complaint that I filed inthe police station. If you have read Article 19(1) of theConstitution, where freedom of expression and thoughtis mentioned but nowhere does it allow crossing the limitsor making extreme comments. There are restrictionsmentioned and Mr Arnab has violated them. I have lotof respect of Mr Arnab, he’s senior journalist, and hehas handled the media well till now but what happenedlately. I don’t know. During his speech, he forgot thathe’s citizen of this country and citizen has to abideby the Constitution. I have always supported freedomof expression for journalists but the question is, thesecomments involve clear attempt to incite riot. Arnabwas questioned for along during because he’s facing acharge of criminal conspiracy, involving IPC 153, IPC153(a) and others. You raise the point of him beingquestioned for 12 to 12.5 hours, I want to ask you thatthis country’s former home minister and former financeminister P Chidambaram was made to sit for so manyhours, why did that happen? You people never raisequestions on the reason behind that interrogation. I haveheard that clip and Arnab tried to stoke communalsentiments in that speech. No one gave him that right,not even the Constitution.”

(l)On 30 April 2020, the IO issued two notices to the ChiefFFinancial Officer[10] of Republic TV under Sections 91 and160 of the CrPC requesting for documents. Pursuant to thenotice, the CFO appeared before the Mumbai police withpublicly available documents and copies of broadcastlicenses. He was interrogated for about 6.5 hours inter aliain regard to the following aspects:G

(i) Role of the Petitioner’s wife, Mrs Samyabrata RayGoswami in the news channels and the corporate structureof company.

(ii) Details of the investors in the Petitioner’s company,ARG Outlier Media News Private Limited and whetherthe Petitioner ran the news channel as proxy owner foran on behalf of someone else.

(iii)Surprisingly, Mr Sundaram was also asked whether therewas “someone” instructing the Petitioner to pose questionsconcerning Mrs Sonia Gandhi and concerning her allegeddefamation.

(iv) As with the Petitioner, Mr Sundaram was also asked ifthe Petitioner’s news channel has any arrangement ofsending video recording of news reports to the CentralGovernment.

(v) Details on how the Petitioner’s channel selects panelistsfor news shows and whether any remuneration is paid tothem.”

(m) It has been allegedly learned that an asymptomatic officerattached to the NM Joshi Marg Police Station in Mumbaiwhere the CFO was being interrogated had tested positivefor Covid-19 day earlier with the result that all officers atthe police station were now being tested. The CFO had beensubjected to grave and unnecessary danger; and

(n)While on the one hand, the police had been investigatingFIR 164 of 2020, the FIR lodged by the petitioner followingthe attack on him[11] is not being investigated satisfactorily.Two persons alleged to have been involved in the attack onthe petitioner were enlarged on bail on 27 April 2020 by theMagistrate’s Court at Bhoiwada, Mumbai.

12. On the basis of the above averments, the petitioner seeks thefollowing reliefs by his IA:

(i)A stay of the investigation and all incidental steps by theMumbai police in connection with FIR 238 of 2020transferred to the NM Joshi Marg Police Station in Mumbai(renumbered as FIR 164 of 2020) in pursuance of the orderof this Court dated 24 April 2020;

A(ii)In the alternative, for transfer of the investigation to theCentral Bureau of Investigation[12] with direction to the CBIto submit reports to this Court from time to time;

(iii)A transfer of the investigation of FIR 148 of 2020 lodged bythe petitioner to the CBI or to an independent investigatingBagency;

(iv)Permission to the petitioner to join in the investigation byvideo conferencing; and

(v)Providing security to the petitioner and his family at hisresidence and for the business establishment.C

IA 48588 of 2020[13]: filed by the Government of Maharashtra

13. The IA is supported by an affidavit of Abhinash Kumar, DeputyCommissioner of Police, Zone-3, Mumbai, who is supervising theinvestigation into Cr. No. 164 of 2020 at the NM Joshi Marg PoliceDStation in Mumbai. The Mumbai police has sought to highlight the conductof the petitioner in obstructing the due course of investigation. The reliefswhich have been sought in the IA are as follows:

“a. Issue appropriate directions as this Hon’ble Court may deemfit so as to insulate the investigation agency from any pressure,threat or coercion from the Petitioner and to enable theEInvestigating Agency to carry out its lawful obligations in fairand transparent manner;

b. Restrain the Petitioner from abusing the interim protectiongranted to the Petitioner vide the order dated 24[th] April 2020;”

F14. The basis of the IA appears from the following averments:

(i)On 27 April 2020, the petitioner attended the NM Joshi MargPolice Station in Mumbai at 9 am accompanied by anentourage of his reporters and camerapersons and gaveseveral speeches which were allegedly telecast live;

(ii)After the petitioner had been interrogated for 4 hours, atweet was posted on Republic Bharat stating in Hindi thatupon coming out of the police station, the petitioner hadclaimed that ‘truth will prevail’;

12 “CBI”H13 Filed by the State of Maharashtra

(iii)Two other tweets posted on Republic Bharat in regard toAthe conduct of the investigation have sought to create animpression that:

(a) The police is biased;

(b) The FIR lodged by the petitioner is not beingBinvestigated; and

(c) The petitioner has been unnecessarily questioned overseveral hours;

(iv)On 28 April 2020, the petitioner hosted debate on RepublicBharat in the course of programme titled “Puchta haiBharat” where he made allegations against theCommissioner of Police[14], Mumbai of his complicity in ascam involving India Bulls. The petitioner threatened to revealthese details;

(v)The statements against the CP are intended to hinder thecourse of the investigation and the allegations have surfacedonly after the investigation against the petitioner commencedon 26 April 2020;

(vi)The allegation of the petitioner that the police were notinvestigating his FIR is belied by the circumstance that anFIR was registered under Sections 341 and 504 read withSection 34 of the IPC;

(vii) The two accused in the FIR filed by the petitioner werearrested and eventually released on bail on 27 April 2020 bythe Metropolitan Magistrate at the 13th Court at DadarMumbai; and

(viii) The Deputy Commissioner of Police[15], Mumbai has submittedthat Palghar lies beyond the territorial jurisdiction of theMumbai police and hence the accusations made by thepetitioner are false. It has been submitted that the petitionerhas misused his freedom under Article 19(1)(a) of theConstitution by casting unfounded allegations on the CP andhence, directions of this Court are necessary to insulate the

[2020] 8 S.C.R.

Ainvestigating agency so as to the enable it carry on its functionin 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 affidavitof Shri S Sundaram, the CFO of Republic Media Network. The affidavitBof the CFO attempts to support the case of the petitioner that:

(i)A prolonged interrogation is being carried out for seeminglyvindictive and malicious purpose;

(ii)The CFO has been interrogated on the structure of theCholding company, shareholding pattern and investors: matterswhich are extraneous to the investigation of the FIR;

(iii)Questions have been posed during the course of theinterrogation about the equity cash transactions, the namesof the remaining stakeholders, investment by the key investorDand the role of the petitioner’s spouse; and

(iv)The CFO was interrogated on the editorial process of thechannel, the editorial teams involved and the process wherebya programme is put together. The IO also inquired abouthow participants are chosen.

EIA 48586 of 2020: filed by the petitioner16. The petitioner moved this IA seeking an amendment to thepetition filed under Article 32. The petitioner seeks the addition of thefollowing reliefs:

(i)A declaration that Section 499 of the IPC is violative ofFArticle 19(1)(a) of the Constitution and is henceunconstitutional;

(ii)A declaration that FIR 164 of 2020[16] and the consequentinvestigation initiated by the State of Maharashtra are illegaland violative of the fundamental rights guaranteed to theGpetitioner under Articles 19 and 21 of the Constitution;

(iii)A writ of prohibition restraining the State of Maharashtrafrom registering any FIR against the petitioner in relation to

the broadcast on R Bharat on 21 April 2020 in relation to thePalghar incident; and

(iv)A writ of prohibition restraining the State of Maharashtrafrom continuing any investigation initiative pursuant to FIR164 of 2020.

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

(a)FIR 238 of 2020 registered on 22 April 2020 at Police StationSadar, District Nagpur city which now stands transferred;

(b)Copies of the complaints lodged in relation to the broadcaston 21 April 2020 by R Bharat at diverse police stations acrossthe country;

(c)The tweets posted from the tweeter accounts of membersof the INC party;

(d)The transcript of the interview with the complaint of FIRD164 of 2020; and

(e)The notices issued to the CFO on 30 April 2020 by the SeniorPolice Inspector, NM Joshi Marg Police Station in Mumbai.

IA 48515 of 2020 and IA 48519 of 2020:

17. These IAs have been filed by the petitioner and cover thesame reliefs which have been sought in IAs 48585 of 2020 and 48586 of2020.

Writ Petition (Crl.) Diary No 11189 of 2020

18. The Writ Petition has been instituted under Article 32 of theConstitution following the interim order dated 24 April 2020 passed bythis Court in the earlier petition. The subsequent petition has beenoccasioned by the registration of an FIR[17] against the petitioner on 2May 2020 at the Pydhonie Police Station, Mumbai[18]. The FIR whichhas been lodged by the third respondent, claiming to be the Secretary ofan organization called Raza Educational Welfare Society. The FIR statesthat on 29 April 2020, the petitioner made certain statements in the courseof programme which was broadcast on R Bharat insinuating (withreference to place of worship) that the “people belonging to the Muslim

Areligion are responsible for the spread of Covid-19”. According to theFIR:

“The statements made by Arnab Goswami on 29/04/2020 onrepublic Bharat TV Channel in connection with the incident ofthe public gathered in the area of Bandra railway station on 14/B04/2020 clearly show that despite Jama Masjid, Bandra being aholy place of worship and despite having no connection with theincident of the gathering of migrant workers at Bandra railwaystation, Arnab Goswami gave it communal colour and blamedthe Muslim community of being responsible for the spread ofCorona. By making statements such as the aforesaid repeatedlyCon the show, he has severely hurt the sentiments of the Muslimcommunity. He has tried to create communal tensions, incite riotsand deliberately hurt the sentiments of the Muslim community byinsulting their place of worship. By directly connecting the gatheringof migrant workers at the Bandra railway station on 14/04/2020Dwith Jama Masjid, Arnab Goswami disrupted communal harmony.His statements further implied that the Muslim community is violentand does not respect the law. Arnab Goswami as the owner andanchor of the said TV show has made these statements with anintention of create strain / communal disharmony between theHindu and Muslim communities.”

19. Having adverted to the telecast which took place on 29 April2020, the FIR makes reference to 14 April 2020 as the date on whichthe petitioner as the “anchor and owner” of R Bharat has attempted toconnect place of religious worship with the gathering of migrant workersat Bandra railway station. The FIR has been registered under SectionsF153, 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 thisCourt for an order quashing the FIR and for writ directing that nocognisance should be taken on any complaint or FIR on the same causeof action hereafter.G

20. Leading the arguments on behalf of the petitioner, Mr HarishSalve, learned Senior Counsel submitted that the petition which has beeninstituted before this Court under Article 32 raises “wider issues”implicating the freedom of speech and expression of journalist to airviews which fall within the protective ambit of Article 19(1)(a). Mr SalveHsubmitted that the petitioner is justified in invoking this jurisdiction since

it is necessary for this Court to lay down safeguards which protect thedemocratic interest in fearless and independent journalism. Thesubmissions which Mr Salve urges can be formulated for analysis thus:

(i)Both the FIRs which have been lodged against the petitionerare intended to stifle the free expression of views by anindependent journalist which is protected within the ambit ofBArticle 19(1)(a) of the Constitution;

(ii)The investigation by the Mumbai police is mala fide;

(iii)The fact that the lodging of the FIR and the commencementof investigation is mala fide is evident from the followingcircumstances:

a.All the FIRs, or as the case may be, the complaints arereplicas with little variation of language or content andwith respect to the same cause of action;

b.The complainants have all chosen states where thegovernment has been formed of or with the support ofthe INC;

c.The enquiries which were made by the police duringthe course of interrogating the petitioner and the CFObear no nexus with the contents of the FIR and it isevident that the petitioner is being targeted forexpressing views critical of the President of the INC;

d.The involvement of the INC in targeting the petitioneris evident from the fact that during the course of theinvestigation, tweets by activists and members of theparty appeared on social media bearing on the courseof the interrogation;

e.The complainant of the FIR, who is Cabinet Ministerin the State Government of Maharashtra, has gone onrecord in the course of an interview to target thepetitioner for airing his views;

f.The investigation by the Mumbai police is directedagainst an alleged act of defamation committed againstthe President of the INC. The police are trying toimplicate the petitioner in the offence of defamation

Adespite the settled position of law that absent acomplaint by the person who is allegedly defamed, noFIR can be lodged; and

g.The petitioner has, in the course of his programmes onR Bharat and Republic TV, implicated the MaharashtraBpolice and the State Government for their failure toinvestigate the Palghar incident. He has leveled seriousallegations against the CP, Mumbai. Hence, there is anevident conflict of interest in the investigation beingconducted by the Mumbai police and the petitionerapprehends that fair and impartial process will beCdenied to him were the investigation to continue; and

(iv)In the circumstances which have been set out above, it isappropriate to protect the constitutional rights of the petitionerby directing that the investigation be stayed or that, in thealternative, it be handed over to the CBI.D

21. Mr Tushar Mehta, learned Solicitor General has urged thatthis is peculiar situation where the Mumbai police, as the investigatingagency, has sought the protection of this Court in order to conduct fairand impartial investigation, complaining that the petitioner is impedingthe process. The Solicitor General submitted that in this backdrop, itEwould be appropriate if the Court were to decide that an impartial agencyconduct the investigation. Mr Mehta urged that should this Court beinclined to hand over the investigation to the CBI, the agency will conductthe investigation. The Solicitor General urged that:

(i)The conduct of the state police in the present case isF‘disturbing’;

(ii)The police, as an investigating agency, has sought insulationfrom the accused; and

(iii)Investigation by an agency which allays any apprehensionof victimisation would be the appropriate course of action.G22. Mr Kapil Sibal, learned Senior Counsel appearing on behalf ofthe State of Maharashtra has, while opposing the petitions, urged that:

(i)Both the petitions are an attempt to seek directions fromthis Court to monitor the course of the investigation which isHimpermissible in view of the settled legal position;

(ii)The pleadings in the petitions as well as the submissionsAurged during the hearing indicate that the petitioner isobjecting to the questions which were posed to him duringthe course of the investigation;

(iii)The petitioner, as the person against whom the first FIR hasbeen lodged, has absolutely no locus to question the line ofBinvestigation or nature of the interrogation;

(iv)The rights of the petitioner under Article 19(1)(a) are subjectto the limitation stipulated in Article 19(2). The FIRs and thevideo clips from the programmes posted by the petitioner(clips of which were played by Mr Kapil Sibal, learned SeniorCounsel over video conferencing during the course of thehearing) indicate that the offences in question are made out;

(v)Contrary to the allegations which have been leveled by thepetitioner against the Maharashtra police, it is the petitionerwho has made conscious effort to stifle the investigationby an unrestrained use of social media, which is evident fromthe tweets emanating from the channel during and after theinterrogation;

(vi)The petitioner can have absolutely no grievance with thecourse of the investigation when he was summoned forinterrogation only on one day between the date of theregistration of the FIR and the present time;

(vii) Mumbai police has no territorial jurisdiction or connectionwith the investigation which has been conducted into thePalghar incident;

(viii) The conduct of the petitioner would indicate that he has madebaseless allegations against the CP, Mumbai for the firsttime after his interrogation took place on 27 April 2020. Theattempt by the petitioner is clearly to use his position as amedia journalist to create an environment of ill-feelingtowards the investigating agency;

(ix)As regards the second FIR, no investigation has commencedand hence recourse to the jurisdiction of this Court underArticle 32 is premature;

A(x)Despite the liberty which was granted to the petitioner bythis Court in its order dated 24 April 2020, the petitioner hasneither moved the Bombay High Court for quashing the FIRsunder Section 482 of the CrPC or for the grant of anticipatorybail; and

B(xi)In the above circumstances, the petitions filed by thepetitioner under Article 32 of the Constitution ought not tobe entertained.

23. Dr Abhishek Manu Singhvi, learned Senior Counsel appearingon behalf of the investigating agency of the Maharashtra police adducedCseven precepts as the foundation of his submission that the petitionsought not to be entertained. Dr Singhvi urged:

(i)The facts of the present case clearly demonstrate that inthe garb of an arc of protection, the accused is attempting tobrowbeat the police;

D(ii)The petitions under Article 32 constitute an attempt of ‘leapfrogging’ the normal procedure available under the CrPC;

(iii)Any interference in the course of an investigation isimpermissible;

(iv)What the petitioner seeks to attempt by the process whichEhas been adopted is to convert the jurisdiction under Article32 into one under Section 482 of the CrPC;

(v)Though the petitioner is entitled to the fundamental rightsunder Article 19(1)(a), their exercise is subject to thelimitations stipulated in Article 19(2). The content of the FIRsFand the video clips would demonstrate that the restrictionsunder Article 19(2) are attracted;

(vi)Applying the sub judice doctrine, the petitioner is not entitledto seek the intervention of this Court in the course of aninvestigation; andG

(vii) The transfer of an ongoing investigation to the CBI has beenheld to be an extraordinary power which must be sparinglyexercised in exceptional circumstances. The accused, it iswell-settled, can have no locus in regard to the choice ofthe investigating agency.

24. Elaborating these submissions, Dr Singhvi submitted that:

(i)Despite the protection that was granted by this Court forthree weeks, the petitioner has not moved the competentcourt for anticipatory bail or for quashing the FIRs;

(ii)No complainant was impleaded when the first petition wasBfiled;

(iii)In respect of the FIR at the Pydhonie Police Station, noinvestigation has even commenced;

(iv)The transfer of the investigation of the first FIR from PoliceStation Sadar, District Nagpur City to NM Joshi Marg PoliceCStation in Mumbai was at the request of and with the consentof the petitioner; and

(v)The conduct of the petitioner indicates that it is he who isstifling the investigation.

25. Dr Singhvi submitted that an interrogation does not infringepersonal liberty. On the basis of the above submissions, it has been urgedthat no case has been made out for the transfer of the investigation tothe CBI. He urged that the second Writ Petition must, in any event, bedismissed.

26. At this stage, it is necessary to note that the attention of MrKapil Sibal and Dr Singhvi, learned Senior Counsel was specifically drawnto the fact that the FIRs which were filed in various states by personsprofessing allegiance to the INC appear, prima facie, to be reproductionsof the same language and content. Responding to this, Mr Sibal fairlystated that in the exercise of the jurisdiction under Article 32, this Courtmay well quash all the other FIRs and allow the investigation into theFIR which has been transferred to the NM Joshi Marg Police Station inMumbai to proceed in accordance with law. Mr Sibal has also urgedthat there cannot be any dispute in regard to the legal position that acomplaint in regard to the offence of defamation can only be at thebehest of the person who is aggrieved. Consequently, the FIR which hasbeen presently under investigation at the NM Joshi Marg Police Stationin Mumbai would not cover any offence under Section 499 of the IPC.

27. Mr K V Vishwanathan, learned Senior Counsel appearing onbehalf of the complainant in the second FIR submitted that:

A(i)The FIR which was lodged on 2 May 2020 pertains to abroadcast which took place on 29 April 2020;

(ii)The maintainability of the Writ Petitions under Article 32 isquestioned; and

(iii)The statements made by the petitioner in the course of theBprogrammes which were broadcast clearly implicateoffences under Sections 153A, 295A and cognate provisionsof the IPC.

Analysis

C28. The fundamental basis on which the jurisdiction of this Courthas been invoked under Article 32 is the filing of multiple FIRs andcomplaints in various States arising from the same cause of action. Thecause of action was founded on programme which was telecast on RBharat on 21 April 2020. FIRs and criminal complaints were lodgedagainst the petitioner in the States of Maharashtra, Rajasthan, MadhyaDPradesh, Telangana and Jharkhand besides the Union Territories ofJammu and Kashmir. The law concerning multiple criminal proceedingson the same cause of action has been analyzed in judgment of thisCourt in TT Antony v State of Kerala[19](“TT Antony”). Speaking fora two judge Bench, Justice Syed Shah Mohammed Quadri interpretedEthe provisions of Section 154 and cognate provisions of the CrPC includingSection 173 and observed:

“20…under the scheme of the provisions of Sections 154, 155,156, 157, 162, 169, 170 and 173 CrPC, only the earliest or the firstinformation in regard to the commission of cognizable offencesatisfies the requirements of Section 154 CrPC. Thus, there canFbe no second FIR and consequently there can be no freshinvestigation on receipt of every subsequent information in respectof the same cognizable offence or the same occurrence or incidentgiving rise to one or more cognizable offences. On receipt ofinformation about cognizable offence or an incident giving riseGto cognizable offence or offences and on entering the FIR in thestation house diary, the officer in charge of police station has toinvestigate not merely the cognizable offence reported in the FIRbut also other connected offences found to have been committed

in the course of the same transaction or the same occurrence andfile one or more reports as provided in Section 173 CrPC.”

The Court held that “there can be no second FIR” where theinformation concerns the same cognisable offence alleged in the firstFIR or the same occurrence or incident which gives rise to one or morecognisable offences. This is due to the fact that the investigation coverswithin its ambit not just the alleged cognisable offence, but also anyother connected offences that may be found to have been committed.This Court held that once an FIR postulated by the provisions of Section154 has been recorded, any information received after thecommencement of investigation cannot form the basis of second FIRas doing so would fail to comport with the scheme of the CrPC. Thecourt observed:

“18…All other information made orally or in writing after thecommencement of the investigation into the cognizable offencedisclosed from the facts mentioned in the first information reportand entered in the station house diary by the police officer or suchother cognizable offences as may come to his notice during theinvestigation, will be statements falling under Section 162 CrPC.No such information/statement can properly be treated as an FIRand entered in the station house diary again, as it would in effectbe second FIR and the same cannot be in conformity with thescheme of CrPC.”

This Court adverted to the need to strike just balance betweenthe fundamental rights of citizens under Articles 19 and 21 and theexpansive power of the police to investigate cognisable offence.Adverting to precedent, this Court held:

“27…the sweeping power of investigation does not warrantsubjecting citizen each time to fresh investigation by the policein respect of the same incident, giving rise to one or morecognizable offences, consequent upon filing of successive FIRswhether before or after filing the final report under Section 173(2)CrPC. It would clearly be beyond the purview of Sections154 and 156 CrPC, nay, case of abuse of the statutorypower of investigation in given case. In our view case offresh investigation based on the second or successive FIRs, notbeing counter-case, filed in connection with the same or

Aconnected cognizable offence alleged to have been committed inthe course of the same transaction and in respect of which pursuantto the first FIR either investigation is under way or final reportunder Section 173(2) has been forwarded to the Magistrate, maybe fit case for exercise of power under Section 482 CrPCor under Articles 226/227 of the Constitution.”B

(Emphasis supplied)

The Court held that barring situations in which counter-case isfiled, fresh investigation or second FIR on the basis of the same orconnected cognisable offence would constitute an “abuse of the statutoryCpower of investigation” and may be fit case for the exercise of powereither under Section 482 of the CrPC or Articles 226/227 of theConstitution.

29. The decision in TT Antony came up for consideration beforea three judge Bench in Upkar Singh v Ved Prakash[20](“UpkarDSingh”). Justice N Santosh Hegde, speaking for this Court adverted tothe earlier decisions of this Court in Ram Lal Narang v State (DelhiAdministration)[21] (“Ram Lal Narang”), Kari Choudhary v Mst.Sita Devi[22](“Kari Choudhary”) and State of Bihar v JAC Saldanha[23](“Saldanha”). The Court noted that in Kari Choudhary, this Courtheld that:E

“11…Of course the legal position is that there cannot be two FIRsagainst the same accused in respect of the same case. But whenthere are rival versions in respect of the same episode, they wouldnormally take the shape of two different FIRs and investigationcan be carried on under both of them by the same investigatingFagency.”

30. In Saldanha, this Court had held that the power conferredupon the Magistrate under Section 156(3) does not affect the power ofthe investigating officer to further investigate the case even aftersubmission of the report under Section 173(8). In Upkar Singh, thisGCourt noted that the decision in Ram Lal Narang is “in the same line”as the judgments in Kari Choudhary and Saldanha and held that the

20 (2004) 13 SCC 29221 (1979) 2 SCC 32222 (2002) 1 SCC 714H23 (1980) 1 SCC 554

decision in TT Antony does not preclude the filing of second complaintin regard to the same incident as counter complaint nor is this courseof action prohibited by the CrPC. In that context, this Court held:

“23. Be that as it may, if the law laid down by this Court in T.T.Antony case [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] is to beaccepted as holding that second complaint in regard to the sameincident filed as counter-complaint is prohibited under the Codethen, in our opinion, such conclusion would lead to seriousconsequences. This will be clear from the hypothetical examplegiven hereinbelow i.e. if in regard to crime committed by thereal accused he takes the first opportunity to lodge false complaintand the same is registered by the jurisdictional police then theaggrieved victim of such crime will be precluded from lodging acomplaint giving his version of the incident in question, consequentlyhe will be deprived of his legitimate right to bring the real accusedto book. This cannot be the purport of the Code.”

These principles were reiterated by two judge Bench of thisCourt in Babubhai v State of Gujarat[24]. Dr Justice S Chauhanobserved:

“21. In such case the court has to examine the facts andcircumstances giving rise to both the FIRs and the test of samenessis to be applied to find out whether both the FIRs relate to thesame incident in respect of the same occurrence or are in regardto the incidents which are two or more parts of the sametransaction. If the answer is in the affirmative, the second FIR isliable to be quashed. However, in case the contrary is proved,where the version in the second FIR is different and they are inrespect of the two different incidents/crimes, the second FIR ispermissible. In case in respect of the same incident the accusedin the first FIR comes forward with different version orcounterclaim, investigation on both the FIRs has to be conducted.”

This Court held that the relevant enquiry is whether two or moreFIRs relate to the same incident or relate to incidents which form part ofthe same transactions. If the Court were to conclude in the affirmative,the subsequent FIRs are liable to be quashed. However, where thesubsequent FIR relates to different incidents or crimes or is in the formof counter-claim, investigation may proceed.

24 (2010) 12 SCC 254

A[See also in this context Chirra Shivraj v State of AndhraPradesh[25]and Chirag M Pathak v Dollyben Kantilal Patel[26]].

31. In the present case, all the FIRs or complaints which havebeen lodged in diverse jurisdictions arise out of one and the same incident- the broadcast by the petitioner on 21 April 2020 on R Bharat. TheBbroadcast is the foundation of the allegation that offences have beencommitted under the provisions of Sections 153, 153A, 153B, 295A,298, 500, 504 and 506 of the IPC. During the course of the hearing, thisCourt has had the occasion, with the assistance of the learned SeniorCounsel, to peruse the several complaints that were filed in relation tothe incident dated 21 April 2020. They are worded in identical terms andCleave no manner of doubt that an identity of cause of action underliesthe allegations leveled against the petitioner on the basis of the programmewhich was broadcast on 21 April 2020. Moreover, the language, contentand sequencing of paragraphs and their numbering is identical. It was inthis backdrop that Mr Kapil Sibal, learned Senior Counsel fairly submittedD(in our view correctly) that this Court may proceed to quash all the otherFIRs and complaints lodged in diverse jurisdictions in the States, leavingopen, however, the investigation in respect of the FIR 238 of 2020 dated22 April 2020 transferred from the Police Station Sadar, District NagpurCity to NM Joshi Marg Police Station in Mumbai.

E32. Article 32 of the Constitution constitutes recognition of theconstitutional duty entrusted to this Court to protect the fundamentalrights of citizens. The exercise of journalistic freedom lies at the core ofspeech and expression protected by Article 19(1)(a). The petitioner is amedia journalist. The airing of views on television shows which he hostsis in the exercise of his fundamental right to speech and expressionFunder Article 19(1)(a). India’s freedoms will rest safe as long as journalistscan speak to power without being chilled by threat of reprisal. Theexercise of that fundamental right is not absolute and is answerable tothe legal regime enacted with reference to the provisions of Article 19(2).But to allow journalist to be subjected to multiple complaints and to theGpursuit of remedies traversing multiple states and jurisdictions when facedwith successive FIRs and complaints bearing the same foundation has astifling effect on the exercise of that freedom. This will effectively destroythe freedom of the citizen to know of the affairs of governance in the

25 (2010) 14 SCC 444H26 (2018) 1 SCC 330

nation and the right of the journalist to ensure an informed society. Ourdecisions hold that the right of journalist under Article 19(1)(a) is nohigher than the right of the citizen to speak and express. But we must asa society never forget that one cannot exist without the other. Free citizenscannot exist when the news media is chained to adhere to one position.Yuval Noah Harari has put it succinctly in his recent book titled “21Lessons for the 21[st] Century”: “Questions you cannot answer are usuallyfar better for you than answers you cannot question.”33. litany of our decisions – to refer to them individually wouldbe parade of the familiar – has firmly established that any reasonablerestriction on fundamental rights must comport with the proportionalitystandard, of which one component is that the measure adopted must bethe least restrictive measure to effectively achieve the legitimate stateaim. Subjecting an individual to numerous proceedings arising in differentjurisdictions on the basis of the same cause of action cannot be acceptedas the least restrictive and effective method of achieving the legitimatestate aim in prosecuting crime. The manner in which the petitioner hasbeen subjected to numerous FIRs in several States, besides the UnionTerritories of Jammu and Kashmir on the basis of identical allegationsarising out of the same television show would leave no manner of doubtthat the intervention of this Court is necessary to protect the rights of thepetitioner as citizen and as journalist to fair treatment (guaranteed byArticle 14) and the liberty to conduct an independent portrayal of views.In such situation to require the petitioner to approach the respectiveHigh Courts having jurisdiction for quashing would result into multiplicityof proceedings and unnecessary harassment to the petitioner, who is ajournalist.

34. The issue concerning the registration of numerous FIRs andcomplaints covering different states is however, as we will explain, distinctfrom the investigation which arises from FIR 164 of 2020 at NM JoshiMarg Police Station in Mumbai. The petitioner, in the exercise of hisright under Article 19(1)(a), is not immune from an investigation into theFIR which has been transferred from Police Station Sadar, District NagpurCity to NM Joshi Marg Police Station in Mumbai. This balance has to bedrawn between the exercise of fundamental right under Article 19(1)(a)and the investigation for an offence under the CrPC. All other FIRs inrespect of the same incident constitute clear abuse of process andmust be quashed.

A35. The petitioner has sought, for reasons outlined earlier, thetransfer of the investigation to CBI. Before we elucidate the law on thesubject, we must emphasize at the outset that the transfer of FIR 238 of2020 from the Police Station Sadar, District Nagpur City to NM JoshiMarg Police Station in Mumbai was with the consent of the petitionerand on his request. The reason why the investigation of the FIR wasBtransferred to the NM Joshi Police Station in Mumbai was because thatwas the police station at which an earlier FIR had been lodged by thepetitioner in respect of the incident when he and his spouse were allegedlyobstructed by two political activists on their way home at midnight on 23April 2020. Having accepted the transfer of the investigation from PoliceCStation Sadar, District Nagpur City to NM Joshi Marg Police Station inMumbai, the petitioner now seeks to question that very investigation bythe Mumbai police.

36. The transfer of an investigation to the CBI is not matter ofroutine. The precedents of this Court emphasise that this is anD“extraordinary power” to be used “sparingly” and “in exceptionalcircumstances”. Speaking for Constitution Bench in State of WestBengal v Committee for Protection of Democratic Rights, WestBengal[27](“CPDR, West Bengal”), Justice DK Jain observed:

“70…despite wide powers conferred by Articles 32 and 226 ofEthe Constitution, while passing any order, the Courts must bear inmind certain self-imposed limitations on the exercise of theseconstitutional powers. The very plenitude of the power under thesaid articles requires great caution in its exercise. Insofar as thequestion of issuing direction to CBI to conduct investigation in acase is concerned, although no inflexible guidelines can be laidFdown to decide whether or not such power should be exercisedbut time and again it has been reiterated that such an orderis not to be passed as matter of routine or merely becausea party has levelled some allegations against the localpolice. This extraordinary power must be exercisedGsparingly, cautiously and in exceptional situations where itbecomes necessary to provide credibility and instillconfidence in investigations or where the incident may havenational and international ramifications or where such anorder may be necessary for doing complete justice and

H27 (2010) 3 SCC 571

enforcing the fundamental rights. Otherwise CBI would beflooded with large number of cases and with limited resources,may find it difficult to properly investigate even serious cases andin the process lose its credibility and purpose with unsatisfactoryinvestigations.”

(Emphasis supplied)

This principle has been reiterated in K V Rajendran vSuperintendent of Police, CBCID South Zone, Chennai[28]. DrJustice S Chauhan, speaking for three judge Bench of this Courtheld:

“13…This Court has time and again dealt with the issue underwhat circumstances the investigation can be transferred fromthe State investigating agency to any other independentinvestigating agency like CBI. It has been held that the powerof transferring such investigation must be in rare andexceptional cases where the court finds it necessary in orderto do justice between the parties and to instill confidence in thepublic mind, or where investigation by the State police lackscredibility and it is necessary for having “a fair, honest andcomplete investigation”, and particularly, when it is imperativeto retain public confidence in the impartial working of the Stateagencies.”

Elaborating on this principle, this Court observed:

“17…the Court could exercise its constitutional powers fortransferring an investigation from the State investigating agencyto any other independent investigating agency like CBI only inrare and exceptional cases. Such as where high officials ofState authorities are involved, or the accusation itself is againstthe top officials of the investigating agency thereby allowingthem to influence the investigation, and further that it is sonecessary to do justice and to instill confidence in theinvestigation or where the investigation is prima facie found tobe tainted/biased.”

CDE

AThe Court reiterated that an investigation may be transferred tothe CBI only in “rare and exceptional cases”. One factor that courtsmay consider is that such transfer is “imperative” to retain “publicconfidence in the impartial working of the State agencies.” Thisobservation must be read with the observations by the Constitution Benchin CPDR, West Bengal that mere allegations against the police do notBconstitute sufficient basis to transfer the investigation.

37. In Romila Thapar v Union of India[29], Justice AM Khanwilkarspeaking for three judge Bench of this Court (one of us, Dr Justice DYChandrachud, dissenting) noted the dictum in line of precedents layingdown the principle that the accused “does not have say in the matterCof appointment of investigating agency”. In reiterating this principle, thisCourt relied upon its earlier decisions in Narmada Bai v State ofGujarat[30], Sanjiv Rajendra Bhatt v Union of India[31], Sivakumarv Union of India[32] and Divine Retreat Centre v State of Kerala[33].This Court observed:

D“30…the consistent view of this Court is that the accused cannotask for changing the investigating agency or to do investigation ina particular manner including for court-monitored investigation.”

38. The principle of law that emerges from the precedents of thisCourt is that the power to transfer an investigation must be usedE“sparingly” and only “in exceptional circumstances”. In assessing theplea urged by the petitioner that the investigation must be transferred tothe CBI, we are guided by the parameters laid down by this Court forthe exercise of that extraordinary power. It is necessary to address thegrounds on which the petitioner seeks transfer of the investigation.FThe grounds urged for transfer are:

(i)The length of the interrogation which took place on 27 April2020;

(ii)The nature of the inquiries which were addressed to thePetitioner and the CFO and the questions addressed duringGinterrogation;

29 (2018) 10 SCC 75330 (2011) 5 SCC 7931 (2016) 1 SCC 132 (2018) 7 SCC 365H33 (2008) 3 SCC 542

(iii)The allegations leveled by the petitioner against the failureof the State government to adequately probe the incident atPalghar involving an alleged lynching of two persons in thepresence of police and forest department personnel;

(iv)Allegations which have been made by the petitioner on 28April 2020 in regard to CP, Mumbai; and

(v)Tweets on the social media by activists of the INC and theinterview by the complainant to representative of R Bharat.

39. As we have observed earlier, the petitioner requested for andconsented to the transfer of the investigation of the FIR from the PoliceStation Sadar, District Nagpur City to the NM Joshi Marg Police Stationin Mumbai. He did so because an earlier FIR lodged by him at thatpolice station was under investigation. The petitioner now seeks to preemptan investigation by the Mumbai police. The basis on which the petitionerseeks to achieve this is untenable. An accused person does not have achoice in regard to the mode or manner in which the investigation shouldbe carried out or in regard to the investigating agency. The line ofinterrogation either of the petitioner or of the CFO cannot be controlledor dictated by the persons under investigation/interrogation. InP Chidambaram v Directorate of Enforcement[34], Justice RBanumathi speaking for two judge Bench of this Court held that:“66…there is well-defined and demarcated function in the fieldof investigation and its subsequent adjudication. It is not the functionof the court to monitor the investigation process so long as theinvestigation does not violate any provision of law. It must beleft to the discretion of the investigating agency to decidethe course of investigation. If the court is to interfere in eachand every stage of the investigation and the interrogation of theaccused, it would affect the normal course of investigation. Itmust be left to the investigating agency to proceed in itsown manner in interrogation of the accused, nature ofquestions put to him and the manner of interrogation of theaccused.”

(Emphasis supplied)

AThis Court held that so long as the investigation does not violateany provision of law, the investigation agency is vested with the discretionin directing the course of investigation, which includes determining thenature of the questions and the manner of interrogation. In adopting thisview, this Court relied upon its earlier decisions in State of Bihar v P PSharma[35]and Dukhishyam Benupani, Asst. Director, EnforcementBDirectorate (FERA) v Arun Kumar Bajoria[36]in which it was heldthat the investigating agency is entitled to decide “the venue, the timingsand the questions and the manner of putting such questions” during thecourse of the investigation.

40. In Director, Central Bureau of Investigation vCNiyamavedi represented by its Member K Nandini, Advocate[37],Justice Sujata V Manohar, speaking for three judge Bench of thisCourt held that the High Court should have:

“4…refrained from making any comments on the manner in whichinvestigation was being conducted by the CBI, looking to the factDthat the investigation was far from complete.”

This Court observed that:

“4…Any observations which may amount to interference in theinvestigation, should not be made. Ordinarily the Court shouldErefrain from interfering at premature stage of the investigationas that may derail the investigation and demoralise theinvestigation. Of late, the tendency to interfere in the investigationis on the increase and courts should be wary of its possibleconsequences.”This Court adopted the position that courts must refrain fromFpassing comments on an ongoing investigation to extend to theinvestigating agencies the requisite liberty and protection in conducting afair, transparent and just investigation.

41. The contention of the petitioner that the length of theinvestigation or the nature of the questions addressed to him and theGCFO during the interrogation must weigh in transferring the investigationcannot be accepted. The investigating agency is entitled to determinethe nature of the questions and the period of questioning. The Petitioner

35 1992 Supp. (1) SCC 22236 (1998) 1 SCC 52H37 (1995) 3 SCC 601

was summoned for investigation on one day. Furthermore, the allegationof the Petitioner that there is conflict of interest arising out of thecriticism by him of the alleged failure of the State government toadequately probe the incident at Palghar is not valid. The investigationof the Palghar incident is beyond the territorial jurisdiction of the Mumbaipolice.

42. The petitioner has then sought to rely upon the allegationswhich he has leveled against the CP, Mumbai. The petitioner wasinterrogated on 27 April 2020. The allegations which he leveled againstthe CP, Mumbai were in the course of television programme on 28April 2020 (“Poochta hai Bharat”) relayed on R Bharat at 1900 hrs. Aswe have noted earlier, this Court has, in CPDR, West Bengal held thatno transfer of investigation can be ordered “merely because party haslevelled some allegations against the local police.” Accordingly, we donot find that leveling such allegations would by and itself constitute asufficient ground for the transfer of the investigation.43. The interview given by the complainant to representative ofR Bharat does not furnish valid basis in law for an inference that theinvestigation is tainted or as warranting transfer of investigation to theCBI. The Government of Maharashtra has moved an application beforethis Court (affirmed by the DCP, Zone-3) seeking appropriate directionsto insulate the investigating agency “from any pressure, threat or coercionfrom the petitioner” and to enable it to discharge its lawful duties in afair and transparent manner. Based on the views tweeted by R Bharaton social media, it is the Maharashtra police which is now claiming arestraining order against the petitioner. We are unable to accede to thesubmission of the Solicitor General that the contents of the IA filed bythe State would make it necessary to transfer the investigation to theCBI. The investigating agency has placed on the record what it believesis an attempt by the petitioner to discredit the investigation by takingrecourse to the social media and by utilizing the news channels which heoperates. Social media has become an overarching presence in society.To accept the tweets by the petitioner and the interview by the complainantas justification to displace lawfully constituted investigation agencyof its jurisdiction and duty to investigate would have far-reachingconsequences for the federal structure. We are disinclined to do so.

44. In assessing the contention for the transfer of the investigationto the CBI, we have factored into the decision-making calculus the

Aaverments on the record and submissions urged on behalf of the petitioner.We are unable to find any reason that warrants transfer of theinvestigation to the CBI. In holding thus, we have applied the tests speltout in the consistent line of precedent of this Court. They have not beenfulfilled. An individual under investigation has legitimate expectation ofa fair process which accords with law. The displeasure of an accusedBperson about the manner in which the investigation proceeds or anunsubstantiated allegation (as in the present case) of conflict of interestagainst the police conducting the investigation must not derail thelegitimate course of law and warrant the invocation of the extraordinarypower of this Court to transfer an investigation to the CBI. Courts assumeCthe extraordinary jurisdiction to transfer an investigation in exceptionalsituations to ensure that the sanctity of the administration of criminaljustice is preserved. While no inflexible guidelines are laid down, thenotion that such 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 normalDcourse of law but also render meaningless the extraordinary situationsthat warrant the exercise of the power to transfer the investigation.Having balanced and considered the material on record as well as theaverments of and submissions urged by the petitioner, we find that nocase of the nature which falls within the ambit of the tests enunciated inEthe precedents of this Court has been established for the transfer of theinvestigation.45. final aspect requires elaboration. Section 199 of the CrPCstipulates prosecution for defamation. Sub-section (1) of Section 199stipulates that no court shall take cognisance of an offence punishableFunder Chapter XXI of the Penal Code, 1860 except upon complaintmade by some person aggrieved by the offence. However, where sucha person is under the age of eighteen years, or suffers from mentalillness or from sickness or infirmity rendering the person unable to makea complaint, or is woman who, according to the local customs andmanners, ought not to be compelled to appear in public, some other personGmay, with the leave of the court, make complaint on his or her behalf.Sub-section (2) states that when any offence is alleged against personwho is the President of India, Vice-President of India, Governor of aState, Administrator of Union Territory or Minister of the Union orof State or of Union Territory, or any other public servant employedHin connection with the affairs of the Union or of State in respect of

their conduct in the discharge of public functions, Court of Sessionmay take cognisance of such offence, without the case being committedto it, upon 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 natureof such offence and such other particulars as are reasonably sufficientto give notice to the accused of the offence alleged to have beencommitted. Sub-section (4) mandates that no complaint under sub-section(2) shall be made by the Public Prosecutor except with the previoussanction of the State Government, in the case of person who is or hasbeen the Governor of that State or Minister of that Government or anyother public servant employed in connection with the affairs of the Stateand of the Central Government, in any other case. Sub-section (5) barsthe Court of Sessions from taking cognisance of an offence under sub-section (2) unless the complaint is made within six months from the dateon which the offence is alleged to have been committed. Sub-section (6)states that nothing in this section shall affect the right of the personagainst whom the offence is alleged to have been committed, to make acomplaint in respect of that offence before Magistrate having jurisdictionor the power of such Magistrate to take cognisance of the offence uponsuch complaint.[38]

46. Interpreting this provision, two judge Bench of this Court inSubramanian Swamy v Union of India, Ministry of Law[39](“Subramanian Swamy”) held that neither can an FIR be filed nor cana direction be issued under Section 156 (3) of the CrPC and it is only acomplaint which can be instituted by person aggrieved. This Courtheld:

“207. Another aspect required to be addressed pertains to issueof summons. Section 199 CrPC envisages filing of complaint incourt. In case of criminal defamation neither can any FIR be filednor can any direction be issued under Section 156(3) CrPC. Theoffence has its own gravity and hence, the responsibility of theMagistrate is more. In way, it is immense at the time of issue ofprocess. Issue of process, as has been held in Rajindra NathMahato v. T. Ganguly [Rajindra Nath Mahato v. T. Ganguly,(1972) 1 SCC 450 : 1972 SCC (Cri) 206], is matter of judicial

38 Subramanian Swamy v Union of India, Ministry of Law: (2016) 7 SCC 221 atparagraph 19739 (2016) 7 SCC 221

Adetermination and before issuing process, the Magistrate has toexamine the complainant. In Punjab National Bank v. SurendraPrasad Sinha [Punjab National Bank v. Surendra PrasadSinha, 1993 Supp (1) SCC 499 : 1993 SCC (Cri) 149] it has beenheld that judicial process should not be an instrument of oppressionor needless harassment. The Court, though in different context,Bhas observed that there lies responsibility and duty on theMagistracy to find whether the accused concerned should be legallyresponsible for the offence charged for. Only on satisfying thatthe law casts liability or creates offence against the juristic personor the persons impleaded, then only process would be issued. AtCthat stage the court would be circumspect and judicious inexercising discretion and should take all the relevant facts andcircumstances into consideration before issuing process lest itwould be an instrument in the hands of the private complaint asvendetta to harass the persons needlessly. Vindication of majestyof justice and maintenance of law and order in the society are theDprime objects of criminal justice but it would not be the means towreak personal vengeance. In Pepsi Foods Ltd. v. SpecialJudicial Magistrate [Pepsi Foods Ltd. v. Special JudicialMagistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , two-Judge Bench has held that summoning of an accused in criminalEcase is serious matter and criminal law cannot be set into motionas matter of course.”

47. In view of the clear legal position, Mr Kapil Sibal, learnedSenior Counsel appearing on behalf of the State of Maharashtra hasfairly stated that the FIR which is under investigation at the NM JoshiFMarg Police Station in Mumbai does not and cannot cover any allegedact of criminal defamation. We will clarify this in our final directions.

48. Before we conclude, it is necessary to advert to the interimorder of this Court dated 24 April 2020. By the interim order, the petitionerhas been granted liberty to move the competent court in order to espouseGthe remedies available under the CrPC. Hence, we clarify that this courthas not in the present judgment expressed any opinion on the FIR whichis under investigation at the NM Joshi Marg Police Station in Mumbai.

49. We hold that it would be inappropriate for the court to exerciseits jurisdiction under Article 32 of the Constitution for the purpose ofHquashing FIR 164 of 2020 under investigation at the NM Joshi Marg

Police Station in Mumbai. In adopting this view, we are guided by thefact that the checks and balances to ensure the protection of thepetitioner’s liberty are governed by the CrPC. Despite the liberty beinggranted to the petitioner on 24 April 2020, it is an admitted position thatthe petitioner did not pursue available remedies in the law, but soughtinstead to invoke the jurisdiction of this Court. Whether the allegationscontained in the FIR do or do not make out any offence as alleged willnot be decided in pursuance of the jurisdiction of this Court under Article32, to quash the FIR. The petitioner must be relegated to the pursuit ofthe remedies available under the CrPC, which we hereby do. Thepetitioner has an equally efficacious remedy available before the HighCourt. We should not be construed as holding that petition under Article32 is not maintainable. But when the High Court has the power underSection 482, there is no reason to by-pass the procedure under the CrPC,we see no exceptional grounds or reasons to entertain this petition underArticle 32. There is clear distinction between the maintainability of apetition and whether it should be entertained. In situation like this, andfor the reasons stated hereinabove, this Court would not like to entertainthe petition under Article 32 for the relief of quashing the FIR beinginvestigated at the NM Joshi Police Station in Mumbai which can beconsidered by the High Court. Therefore, we are of the opinion that thepetitioner must be relegated to avail of the remedies which are availableunder the CrPC before the competent court including the High Court.

50. By the order of this Court dated 24 April 2020, the petitionerwas protected against coercive steps for period of three weeks. Theperiod which was due to expire on 14 May 2020 was extended, whenjudgment was reserved on 11 May 2020, pending the decision of thisCourt. We are inclined to extend that protection for further period ofthree weeks, particularly having regard to the outbreak of Covid-19, soas to leave adequate time to the petitioner to pursue his remedies beforethe competent forum.

51. As we have noted earlier, multiple FIRs and complaints havebeen filed against the petitioner in several states and in the UnionTerritories of Jammu and Kashmir. By the interim order of this Courtdated 24 April 2020, further steps in regard to all the complaints andFIRs, save and except for the investigation of the FIR lodged at PoliceStation Sadar, District Nagpur City were stayed. The FIR at Police StationSadar, District Nagpur City has been transferred to NM Joshi Marg

APolice Station in Mumbai. We find merit in the submission of Mr KapilSibal, learned Senior Counsel that fairness in the administration of criminaljustice would warrant the exercise of the jurisdiction under Article 32 toquash all other FIRs (save and except for the one under investigation inMumbai). However, we do so only having regard to the principles whichhave been laid down by this Court in TT Antony. The filing of multipleBFIRs arising out of the same telecast of the show hosted by the petitioneris an abuse of the process and impermissible. We clarify that the quashingof those FIRs would not amount to the expression of any opinion by thisCourt on the merits of the FIR which is being investigated by the NMJoshi Marg Police Station in Mumbai.C[[40]]52. We find no reason to entertain the subsequent Writ Petition[[40]]which has been filed by the petitioner in respect of the FIR lodged atPydhonie Police Station (FIR 137 of 2020 dated 2 May 2020). The basison 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 subsequentDWrit Petition (Crl.) Diary No 11189 of 2020. The petitioner would be atliberty to pursue his remedies under the law in respect of the FIR. Anyrecourse to such remedy shall be considered on its own merits by thecompetent court.

DirectionsE1 Writ Petition (Crl.) No 130 of 2020

53. Amendments as proposed are allowed. The amendments shallbe carried out within one week.

(i)The prayer for transfer of the investigation to the CBI isrejected;F

(ii)The interim order of this Court dated 24 April 2020 by whichFIR 238 of 2020 dated 22 April 2020 was transferred fromthe Police Station Sadar, District Nagpur City to NM JoshiMarg Police Station in Mumbai is confirmed. The FIR whichhas now been numbered as 164 of 2020 shall be investigatedGby the NM Joshi Marg Police Station in Mumbai;

(iii)We decline to entertain the prayer for quashing FIR 164 of2020 (earlier FIR 238 of 2020) under Article 32 of theConstitution. The petitioner would be at liberty to pursueH40 Writ Petition (Crl.) Diary No 11189 of 2020such remedies as are available in law under the CrPC before

the competent forum. Any such application shall beconsidered on its own merits by the competent court;

(iv)In view of the law laid down by this Court in SubramanianSwamy, we clarify that the above FIR does not cover theoffence of criminal defamation under Section 499 of the IPCwhich offence will not form the subject matter of theinvestigation. Hence, it is not necessary to address the prayerfor dealing with the constitutional challenge to the validity ofthe said provision in these proceedings;

(v)The following FIRs/complaints are quashed, following thedecision of this Court in TT Antony (explained subsequently)that successive FIRs/complaints founded on the same causeof action are not maintainable:

“•FIR No. 245 of 2020, dated 22 April 2020, registered atPolice Station Supela, District Durg, Chhattisgarh, undersections 153-A, 295-A and 505 (2) of the Indian Penal Code1860.

• FIR No. 180 of 2020, dated 23 April 2020, registered atPolice Station Bhilal Nagar, District Durg, Chhattisgarh,under sections 153- A, 188, 290 and 505 (1) of the IndianPenal Code 1860.

• FIR No. 176 of 2020, dated 22 April 2020, registered atPolice Station Civil Lines, District Raipur, Chhattisgarh,under sections 153-A, 295-A and 505 (2) of the Indian PenalCode 1860.

• Complaint dated 21 April 2020 by District CongressCommittee – 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. PoliceOfficer, Chirag Nagar, Ghatkopar East, Mumbai.

• Complaint dated 22 April 2020 – Pankaj Prajapti (partyworker of INC and ex-spokesperson NSUI) through counsel

Anshuman Shrivastavas – Superintendent of Police, CrimeBranch, 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.

• Complaint dated 22 April 2020 by Fundurdihari, Ambikapur,District Sarguja, Chhattisgarh – Rajesh Dubey, ChhattisgarhState Congress Committee – to SHO Gandhi Nagar,Ambikapur – u/s 153, 153A, 153B, 504, 505.

• Complaint dated 22 April 2020 in Telangana by Anil KumarYadav, State President of Telangana Youth Congress – toSHO Hussaini Alam – u/s 117, 120B, 153, 153A, 295A,298, 500, 504, 505 and 506. Also 66A of the IT Act.

• Complaint dated 23 April 2020 by Anuj Mishra beforeKotwali, Urai, Tulsi Nagar.

• Complaint dated 22 April 2020 by Kumar Raja, VP, YouthCongress, Jharkhand Congress Committee before KotwaliPolice Station, Upper Bazar, Ranchi.

• Complaint dated 22 April 2020 by Madhya Pradesh YouthCongress.”

(vi)The quashing of the FIRs and complaints listed out in (v)above shall not amount to any expression of opinion by thisCourt on the merits of the FIR which is under investigationby the NM Joshi Marg Police Station in Mumbai;

(vii) No other FIR or, as the case may be, complaint shall beinitiated or pursued in any other forum in respect of the samecause of action emanating from the broadcast on 21 April2020 by the petitioner on R Bharat. Any other FIRs orcomplaints in respect of the same cause of action emanatingfrom the broadcast on 21 April 2020, other than the FIRs orcomplaints referred to in (v) above are also held to be notmaintainable; and

(viii) Liberty to the complainants to move this Court for directionsif 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 inWrit Petition (Crl) Diary No 11006 of 2020[41] against coercivesteps is extended for period of three weeks from the dateof this judgment to enable the petitioner to pursue theremedies available in law;

(ii)The CP, Mumbai shall consider the request of the petitionerfor the provision of security at the residence of the petitionerand at the business establishment in Mumbai, in accordancewith law. Based on the threat perception, police protectionmay be provided if it is considered appropriate and for theperiod during which the threat perception continues; andD

(iii)Nothing contained in the present judgment shall beconstrued as an expression of opinion on the merits of theallegations 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 withthe liberty which has been granted in the above segment. IA 48588 of2020 filed by the state government is dismissed, leaving it open to theinvestigating agency to urge its submissions before the competent court.All other interim applications are disposed of in view of the abovedirections.

56. Pending application(s), if any, shall stand disposed of.

Kalpana K. Tripathy

Writ Petitions disposed of.

41 WP (Crl) No. 130 of 2020