Police can’t use media to sway public opinion that accused is guilty, says Delhi HC in Devangana Kalita case

In a case filed by Pinjra Tod member Devangana Kalita seeking the quashing of the press note issued against her by the Delhi Police alleging her involvement in conspiracy behind Delhi riots, the Delhi High Court has observed that the police's justification to fuel a media trial merely because the sympathisers of the accused are proclaiming her innocence, cannot be countenanced.

The Single Bench of Justice Vibhu Bakhru further highlighted that there is a cardinal difference in attempting to influence the formation of an opinion that an accused is not guilty and the state attempting to influence opinion to the contrary, legal news website LiveLaw.in has reported.

While holding that the principle of 'innocent until proven guilty' is trite law, the court said: 'An expression of an opinion that an accused is not guilty does not destroy the presumption of innocence that must be maintained till an accused is tried and found guilty of an offence. A media campaign to pronounce a person guilty would certainly destroy the presumption of innocence.'

The court added: "It is also necessary to bear in mind that human dignity is recognized as a constitutional value and a right to maintain one's reputation is a facet of human dignity. A person cannot be denuded of his or her dignity merely because he/she is an accused or is under trial"

"There is a cardinal difference in attempting to influence formation of an opinion that an accused is not guilty and the State attempting to influence an opinion to the contrary. An expression of an opinion that an accused is not guilty does not destroy the presumption of innocence that must be maintained till an accused is tried and found guilty of an offence. A media campaign to pronounce a person guilty would certainly destroy the presumption of innocence. The approach that it would be justified to fuel a media trial merely because the sympathizers of the accused are proclaiming his/her innocence, cannot be countenanced," it said.

The order has come in a criminal writ moved by Devangana Kalita seeking a direction to be issued to the Delhi Police to not to leak any allegations pertaining to her to the media pending investigation, and thereafter during trial.

She had also sought for the setting aside of allegations contained in the press note issued by the Delhi Police on June 02, 2020.

The impugned press note had stated allegations against the Petitioner of hatching a conspiracy to instigate riots in the Jaffrabad area of the northeast district of Delhi.

In addition of claiming that the Petitioner is connected to 'India Against Hate' group, the said press note also mentions that a WhatsApp message was found on the phone of an accused revealing the conspiracy and the extent of preparation for causing riots in Delhi.

Adit S Pujari, who appeared for the Petitioner, argued that the said press note of the Delhi Police an attempt to prejudice the Petitioner's right to a fair trial and, thus violates Article 21 of the Constitution.

Pujari further submitted that by circulating the impugned note and selectively leaking the contents of the charge sheet, the respondents had caused immense damage to the petitioner's reputation and her fundamental right to a fair trial as it has weakened the presumption of her innocence.

Additional Solicitor General Aman Lekhi, who appeared for the Delhi Police, defended the press note by contending that the same was issued in response to a campaign run by the Pinjra Tod group on social media against the investigation conducted by the Delhi Police.

While evaluating the submissions, the court relied upon the judgment of Justice D Y Chandrachud in Romila Thapar v. Union of India which stated : 'the use of the electronic media by the investigating arm of the State to influence public opinion during pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt.'

The court also relied upon the Office Memorandum issued by the Ministry of Home Affairs on 01/04/10 which stipulates that the police briefing should normally be done only at the following stages of a case: (a) registration; (b) arrest of accused persons; (c) charge sheeting of the case; and (d) final outcome of the case such as conviction / acquittal etc.

Further, the said OM states, due care should be taken to ensure that there is no violation of any legal, privacy and human rights of the accused/victims, and the police while briefing the media should not make any opinionated or judgmental statements.

After perusing multiple judgements, the court came to the conclusion that: 'Selective disclosure of information calculated to sway the public opinion to believe that an accused is guilty of the alleged offence; to use electronic or other media to run a campaign to besmirch the reputation or credibility of the person concerned; and to make questionable claims of solving cases and apprehending the guilty while the investigations are at a nascent stage, would clearly be impermissible.'

The court further highlighted that there cannot be any blanket order proscribing the Delhi Police from disclosing any information regarding pending cases. The question whether reporting or publication of any information relating to a case pending consideration in a court, has the propensity to subvert fair trial or to interfere in the administration of justice, must be examined in the context of the facts of each case.

Coming to the facts of the present case, the court observed that the allegations made against the Petitioner in the press note were 'faithfully lifted' from one of the chargesheets filed in a case related to Delhi riots.

Moreover, the court also observed that the said press note was not 'selectively leaked' to the media but was circulated through the Public Relations Officer to around 400 media outlets.

While observing that the Petitioner has been effectively declared to be guilty of hatching the conspiracy, the court said the said press note must be read in its context. It said: 'The police authorities are not the adjudicators of guilt or innocence of any person. And, clearly, the police cannot pronounce on the guilt or innocence of any person. Thus, what is reported is their inference from the investigations, which is articulated in the report (the charge sheet) filed before the concerned court.'

While the court did agree that it was not necessary for the police to name the Petitioner in such a press note, the court went on to hold that issuance of such a press note did not violate Article 21 of the Constitution or any other law in force.

The court highlighted that the reasons that prompted the police to issue the impugned note are not subject to judicial review provided they are bonafide and do not violate the Petitioner's right.

In light of these observations, the court directed the Delhi Police to not to issue any further communication naming any accused or any witness till the charges, if any, are framed and the trial is commenced.

'The cases concerning communal riots are undoubtedly sensitive cases', the court observed.