On May 15, the Supreme Court bench of Justices BR Gavai and Sandeep Mehta declared the arrest and remand of NewsClick founder Prabir Purkayastha as illegal. The order that was proclaimed after approximately 7 months after Purkayastha’s arrest was welcomed widely, especially in the media as well as social activists championing the cause of freedom of expression.

The order of the court was based on the reasoning that the copy of the remand application was not provided to the appellant or his counsel before passing the remand order on October 4, 2023. Therefore, the Court held that the arrest and the remand are vitiated.

While pronouncing the judgement, the bench noted that “There is no hesitation in the mind of the Court to reach to a conclusion that a copy of the remand application, in the purported exercise of the communication of the grounds of arrest in writing, was not provided to the accused-appellant or his counsel before the passing of the remand order dated 4th October, 2023, which vitiates the arrest and the subsequent remand of the appellant. As a result, the appellant is entitled to a direction for release from custody by applying the ration of the judgment rendered by this court in Pankaj Bansal.”

Pursuant to Prabir’s arrest and remand being declared invalid and being set aside, the bench ordered for the release of Prabir. However, release will be subject to Prabir furnishing bail and bonds set by the trial Court since chargesheet has been filed in the said case. The chargesheet had been filed in the court on March 30, 2024.

Directing for his release, the bench stated “Appellant shall be released from custody on satisfaction of trial court. Appeal allowed.”

It is to be noted that as the bench was pronouncing the judgment, ASG Raju had sought a clarification from the bench regarding the authorities being precluded being exercising their “correct powers of arrest”, to which Justice Gavai replied by stating that the bench has not said anything on that and that the authorities are permitted to take such action that is permitted under law.

Notably, Senior Advocate Kapil Sibal appeared for Purkayastha and Additional Solicitor General SV Raju appeared for the Delhi Police. Prabir will be released based on the present order after spending 7 months in jail.

Arguments on illegality of remand:

It is essential to note that the present verdict pursuant to the conclusion of arguments in the case on April 30. During the hearing, the bench had questioned the hastiness in which Prabir was arrested and then presented in the Magistrate’s court, without supplying the necessary remand application and documents to the counsel of the accused.

Justice Mehta had asked ASG Raju “First please answer this, why did you not inform his lawyer? What was the hot haste in producing him at 6 AM? You arrested him at 5.45 PM previous day. You had the whole day before you. Why the haste?”

The bench had also questioned why the accused was not allowed to have his own lawyer and a state provided legal aid counsel was present at the time of magistrate’s hearing by reminding ASG Raju that “Principles of natural justice required that his lawyer was there. You could have produced him at 10 AM or 11 AM.”

As per LiveLaw’s live coverage of the hearing, Justice Gavai had further stated that “What was the need to produce him without his lawyer? If you could give him the remand application on WhatsApp, you could have given him at least one hour notice.”

When ASG Raju had raised the contention that the remand application had been sent to lawyer at around 7.07 am (the accused had been presented before the Magistrate at 6 am) and he had later sent the objections, the bench had objected to the same by holding the said argument to be redundant as by that time the remand order had been passed. On this, Justice Gavai had remarked “It is like giving an opportunity of hearing after the order was passed”.

Justice Mehta had also observed that “Without any reason, the whole process was done in hot haste.” He had further stated “Mr. Raju, at least before the remand application, the grounds of arrest must be communicated.”

It is also essential to note that the Court had also rejected the argument raised by the Delhi police, that the time recorded in the remand order (6 AM) was wrong and that it was passed after serving the counsel of the accused. However, the Court had asserted that it will go only by the time recorded in the judicial order.

Senior advocate Kapil Sibal had also responded to the arguments raised by ASG by bringing to focus the constitutional and fundamental safeguards provided to the citizens against arbitrary arrests as well as the precedents set by law. Senior advocate Kapil Sibal had stated that “What is the point of saying that I have the grounds at the time of arrest but I will not show it to you? What is the constitution reason for not informing me? The whole premise of the argument is wrong.”

He had also argued upon the differences that exist between UAPA and The Prevention of Money Laundering Act, 2002 by highlighting that “When you are taking the liberty of the people, the discretion must have some basis…UAPA, to that extent is different from PMLA because under UAPA you would have that kind of information that you would not under PMLA.”

Brief background of the case:

Prabir Purkayastha has been in custody since October 2, 2023 after being booked under the Unlawful Activities (Prevention) Act. Prabir had approached the Constitutional Courts challenging the legality of his arrest by contending that the grounds of arrest were not supplied to him in writing as mandated by the Supreme Court’s judgment in Pankaj Bansal v. Union of India.

On October 16, 2023, Prabir had moved the Supreme Court against the October 5 order of the Delhi High Court, through which the Delhi HC bench of Justice Tushar Rao Gedela had upheld the said remand order by stating that Purkayastha was indeed informed of the grounds within the “as soon as maybe” requirement. Prabir had then moved the Supreme Court assailing said decision of the Delhi High Court. Notably, in today’s verdict, the Supreme Court set aside the Delhi High Court’s judgment as well.

Co-accused and NewsClick human resources head Amit Chakraborty had also approached the top court challenging his arrest, but he was allowed to withdraw his plea after he turned approver for the Enforcement Directorate and was granted a pardon by the Delhi High Court.

While the case was pending, the court had directed the constitution of a board by the All India Institute of Medical Science (AIIMS) for Purkayastha’s independent medical evaluation. This report was received by the Supreme Court on March 20. The Court had directed that a copy of the same be supplied to Prabir’s counsels.

This article was originally published in SabrangIndia and can be read here.