The Lucknow Bench of the Allahabad High Court has allowed anticipatory bail application filed by Founding-Editor of the Wire, Siddharth Varadarajan.
The Bench of Justice Chandra Dhari Singh refused to accept the argument that the applicant may flee from the country and allowed his pre-arrest bail plea on his executing a personal bond to the tune of Rs.2,00,000/- (Rupees Two Lakh) with two sureties each in the like amount to the satisfaction of the learned trial Court concerned.
Varadarajan was booked under Sections 188, 505(2) of the IPC and Section 66D of the IT Act for allegedly making "objectionable" remarks against Uttar Pradesh Chief Minister Yogi Adityanath.
Two FIRs were registered against him on April 1, at City Kotwali and Ayodhya Kotwali Police Station, for making "false claims" on Twitter that Adityanath had attended a religious event on March 25 in Ayodhya on the occasion of Ram Navmi, when a national lockdown was in force. The FIR also referred to an article published by The Wire, making similar claims.
Consequently, Varadarajan had moved the High Court seeking anticipatory bail which first came to be listed on May 8 before Justice Jaspreet Singh. The matter was thereafter posted for May 11 before the appropriate bench for recording the Government's response, after the AGA informed the Court that charge sheet had been filed.
On May 11, Justice Chandra Dhari Singh allowed the State's request for adjournment on account of non-availability of Additional Advocate General, who was to argue the matter.
Hence, the case was listed today.
Varadarajan's counsel argued that there was one small error in the report wherein the statement was wrongly attributed to the Chief Minister of UP. However, the same was corrected as soon it became known to them, even before the registration of the FIR.
"Any factual inaccuracies are not subject to any criminal action in law, even more so the offences with which the applicant has been charged," it was contended.
The Applicant further contended that the report in question was based on facts and the present FIR was an attempt to "muzzle free speech".
It was submitted that the Varadarajan was not required for custodial interrogation since the FIR relates to an article and tweets, which are matters of record and a charge sheet had already been filed. Furthermore, the only one offence cited is non-bailable and that too carries the maximum imprisonment of three years, in which arrest is deprecated by Courts and the law.
It was further his case that on April 10, some policemen of UP came to the his residence and served upon his wife a written notice under Section 41(A) of Cr.P.C. directing him to appear at Police Station Ayodhya at 10 AM on April 14 despite knowing fully well that given the current lockdown, where no trains or planes are operating and people are being prosecuted for stepping out of their houses, and further, the border between the NCT of Delhi and the State of Uttar Pradesh is closed for ordinary traffic, it would be impossible for him to comply with the said notice.
Consequently, he sent his reply via email, assuring that he will cooperate in the investigation. However, completely disregarding the same, the police has sent a second notice under Section 41(A) of Cr.P.C., on April 26. Thus, he was apprehensive of arrest.
The State Government opposed the application while stating that because of the impugned tweet and article, there were several unfortunate communal incidents which destroyed the public peace. It was further submitted that Varadarajan possessed the US Passport, and therefore there was likelihood of his fleeing from the country.
Furthermore, it was submitted that since the police has already completed the investigation and charge-sheet has been filed and the Court concerned has already taken congnizance, under law, there is no apprehension of arrest to the applicant-accused by the investigating agency.
Dispelling the State's arguments, the court held,
"The court Right to life and personal liberty are one of the important fundamental rights guaranteed by the constitution and therefore, no person should be confined or detained in any manner unless he has been held guilty."
The bench clarified that an anticipatory bail application may be filed irrespective of the stage of investigation/ trial and the only essential precondition for the same is "apprehension of arrest".
"The words and the language under Section 438(1) and (3) are so clear, so as to lead to the conclusion that whenever any person apprehends that he may be arrested for a nonbailable offence, he may seek for anticipatory bail, irrespective of the stages.
Therefore, the apprehension that he may be arrested on an accusation of a non-bailable offence has alone to be given due consideration and weight, irrespective of the state of the case," the bench clarified.
Keeping in view the facts of the case the bench said that during the investigation, when the police officer has decided not to arrest, there is no apprehension of arrest. But, after filing of the charge sheet and that too once the warrant/summon is issued to appear the accused, then there would certainly be an apprehension of arrest.
In the present circumstances, the court noted that the Applicant's apprehension of arrest was fortified by the conduct of Uttar Pradesh Police, which had already sent two notices under Section 41(A) of Cr.P.C.
Accordingly, the bench allowed the bail application and directed Varadarajan to surrender his passport to the concerned trial Court and to remain available for trial, as and when required.
Terming the registration of FIR against Varadarajan as "an act of intimidation", the Editors Guild of India had issued a statement on April 2, expressing deep anguish over the UP Government's action of trying to "disable" the media autonomy.
Case Title: Siddharth Varadarajan v. State of UP & Anr.
Case No.: Bail No. 2776/2020
Quorum: Justice Chandra Dhari Singh
Appearance: Senior Advocate IB Singh and Advocates Amrendra Nath Tripathi and Surangama Sharma (for Petitioner); Additional Advocate General VK Shahi and Additional Government Advocate Shri Jayant Singh Tomar (for State)
Click Here To Download Order Dated May 8
Click Here To Download Order Dated May 11
Click Here To Download Order Dated May 15