Delhi HC reserves order on NewsClick plea challenging FIR, arrest & remand

Delhi High Court reserved its order on the plea of news portal NewsClick founder Prabir Purkayastha and HR head Amit Chakravarty challenging their arrest, remand and FIR by Delhi Police under the Unlawful Activities Prevention Act (UAPA), based on allegations that they had received money for Chinese propaganda.

A single-judge bench of Justice Tushar Rao Gedela, who was hearing the case, reserved the order after hearing both sides. The court said it would decide later if it should issue a notice and hear the prayer to quash the UAPA FIR. Both Purkayastha and Chakravarty have been remanded to police custody for seven days until 10 October.

NewsClick founder-editor Purkayastha and the portal’s administrator Chakravarty were arrested on 3 October under the controversial UAPA, after Delhi Police raided and questioned 46 journalists and writers, most of who seem to be associated with NewsClick though not all are employees.

During the hearing, senior advocate Kapil Sibal, appearing for Purkayastha, said both the arrest and remand were illegal because they had not been given the grounds of arrest. This was in violation of the recent Supreme Court judgment in the Directorate of Enforcement vs Pankaj Bansal (M3M case).

On Monday, 9 October, Sibal argued that NewsClick had not received a single penny from China and all the charges mentioned in the FIR are false.

According to rules, if the accused is not present, the court must pass an order of temporary remand. “They say time of arrest and grounds of arrest were mentioned in the case diary. But the grounds of arrest are different from reasons for arrest. The law is that they have to provide grounds of arrest and as I said, till date, that has not been done,” said Sibal, while taking the court through the arrest and raids. He requested the court to check the remand application where an overwriting could be seen and pointed out that he was not informed about it.

On Friday, Justice Gedela had asked solicitor-general Tushar Mehta, who had appeared for Delhi Police, if they had included the grounds for arrest in their application as there was a judgement in the Supreme Court which stated that it was imperative for the investigating authorities to communicate the grounds to those being arrested.

To break it down, the existence of a case is not reason enough for the police to arrest a person. To make an arrest, the police need to have reason to believe that the person is involved or suspected to be involved in the commission of the crime.

But grounds of arrest are separate from reasons for arrest because the grounds explain to the accused the necessity to arrest the accused, which could be to prevent such a person from committing a crime, from influencing witnesses or destroying evidence, or explaining the necessity of holding the person in custody for interrogation.

The right to be supplied the grounds for arrest in writing is enshrined in article 22 of the Constitution, as was recently reiterated in the M3M case. Article 22 states that “no person who is arrested shall be detained in custody without being informed, as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”.

Senior advocate Dayan Krishnan, who also appeared for Purkayastha, submitted that his right under article 22 of the Constitution had been violated as Purkayastha was neither provided with the grounds of his arrest nor was he allowed to have his lawyer at the time of passing of the remand order.

“The submission they made in the court was that the case diary was signed on 5 October. This was when the remand had already been ordered,” pointed out Krishnan.

Chakravarty’s lawyer Siddharth Aggarwal explained that his client was suffering from 59 per cent disability owing to polio but the remand application did not mention his disability. He added that Chakravarty was not a journalist or an editor, and hence not responsible for what is published on NewsClick. “Both the issues have been clubbed together and there has been no independent application of mind," he stated.

Mehta said the accused tried to compromise the integrity and stability of the nation. “NewsClick has used an expression used by China to refer to Arunachal Pradesh, namely northern border of Myanmar,” said the SG, while repeating that the accused were informed of the grounds.

He also argued that the requirement of furnishing the grounds in writing to the accused should not be made applicable to the prosecution in this case because the judgement in M3M is dated 3 October and the date of Purkayastha’s arrest was 4 October, and Delhi Police was not party to the previous case and hence did not know about the citation, in which case the arrest was legal.

However, the lawyers of the accused pointed out that the requirement to provide the grounds of arrest was always enshrined in the Constitution; the Supreme Court merely reiterated it.

The current case purportedly has its roots in an August 2023 report by the New York Times, which claimed that NewsClick was funded by a network linked to US-based tech mogul and millionaire Neville Roy Singham to allegedly promote Chinese propaganda.

The FIR named Purkayastha, activist and Bhima-Koregaon case accused Gautam Navlakha, and Singham, invoking multiple sections of the UAPA (13,16,17,18,22c) and sections 153A and 120B of the Indian Penal Code. The UAPA sections involve unlawful activity, terrorism, raising funds for terrorism, conspiracy and threatening witnesses, while the IPC sections involve promoting enmity between groups and criminal conspiracy.