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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
CRL.MC NO. 6319 OF 2024
CRIME NO.752/2024 OF Museum Police Station, Thiruvananthapuram
AGAINST THE ORDER DATED 15.06.2024 IN CRMC NO.1466 OF 2024 OF
ADDITIONAL SESSIONS COURT - V, THIRUVANANTHAPURAM
PETITIONER/PETITIONER NO.1/ACCUSED NO.1:
SUNIL MATHEW
AGED 44 YEARS, S/O. BABY MATHEW,
MANAGING EDITOR, I2I NEWS,
ALTHARA BUILDINGS, JAWAHAR NAGAR P.O.,
THIRUVANANTHAPURAM, PIN - 695003
BY ADVS.
SRI.SOORAJ T.ELENJICKAL
SMT.HELEN P.A.
ADV.STEPHANIE SHARON
SRI.ATHUL ROY
SRI.INDRAJITH DILEEP
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 THE STATION HOUSE OFFICER
MUSEUM POLICE STATION,
THIRUVANANTHAPURAM, PIN - 695033
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031
(CRIME NO. 752/2024 OF MUSEUM POLICE STATION,
THIRUVANANTHAPURAM)
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SMT. SREEJA V., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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“C.R.”
BECHU KURIAN THOMAS, J.
--------------------------------
Crl.M.C No.6319 of 2024
---------------------------------
Dated this the 13th day of September, 2024
ORDER
Petitioner challenges one of the conditions imposed upon him while
granting anticipatory bail.
2. The Supreme Head of the Believers Church - Sri. K.P. Yohannan
alias Moran Mar Athanasius Yohan Metropolitan is alleged to have died in an
accident during a visit to the United States of America. Petitioner who claims
to be the Managing Editor of a YouTube news channel called ‘i2i News’ alleges
that he, as a professional journalist, obtained information during his
investigative journalism that there was foul play behind the death of the
Bishop and filed complaints before the State Police Chief with all good faith. A
petition dated 28-05-2024 has been submitted by the petitioner before the
State Police Chief.
3. In the meantime, a complaint was filed by another Bishop of the
Believers Church, alleging that on 09-05-2024 and 21-05-2024, the second
accused had aired false news through his news channel - the first accused,
stating that the death of the Bishop was not accidental but was the result of a
planned murder. It was also alleged that the third accused demanded
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advertisements on the news channel failing which the accused threatened the
Church of publishing such false news which would have a tendency to create
division among the Church members.
4. Based on the above complaint dated 24-05-2024, FIR No.752 of
2024 of Museum Police Station, Thiruvananthapuram, was registered on 29-05
2024 alleging offences under sections 153, 120B and 506 of the Indian Penal
Code, 1860 apart from Section 120(o) of the Kerala Police Act, 2011 with the
news channel as the first accused, petitioner as the second accused and a
marketing executive of the channel as the third accused. Later, section 384
IPC was also added and hence petitioner sought protection from arrest. While
granting anticipatory bail to the petitioner, the learned Sessions Judge imposed
the condition that he shall not air any news related to the death of
Sri. K.P.Yohannan until his petition before the State Police Chief is disposed off.
The said condition is challenged in this petition under section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023.
5. I have heard Sri. Sooraj Thomas Elanjickal, the learned Counsel for
the petitioner as well as Smt. Sreeja V., the learned Public Prosecutor.
6. Concededly, petitioner is a journalist operating a news channel by
name ‘i2i News’. He is alleged to have published news relating to the death of
the Bishop of Believers Church portraying it to be a murder and not an
accidental death. Petitioner has already filed complaints before the State Police
Chief to investigate into the allegation. The information allegedly collected by
him is stated to have been published through his news channel on two
different days. The only non-bailable offence alleged against the accused is
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under section 384 IPC. The learned Sessions Judge felt it appropriate to grant
anticipatory bail to the petitioner but imposed conditions which included a
restraint on publishing any news relating to the death of the said Bishop.
7. The question raised relates to the freedom of the press vis-a-vis
conditions that can be imposed in a bail order. While penning this judgment,
this Court is reminded of the words of Nobel Laureate Albert Camus that “A
free press can, of course, be both good and bad, but, most certainly, without
freedom, the press will never be anything but bad”. Freedom of the press is a
prerogative that no country can ill afford to renounce. However much people
may hate a free press, its absence leads to curtailment of democratic rights
and even liberty. The absence of a free press has been said to be the absence
of democracy. The said freedom is however not absolute and is subject to
reasonable restrictions. Restrictions can be imposed in the exercise of such
freedom in appropriate circumstances. The question that needs resolution
here is whether such restrictions can be imposed as part of the conditions of
bail.
8. Anticipatory bail was granted to the petitioner under section 438
Cr.P.C. Under sub-clause (2) of section 438 Cr.P.C, the court has the power to
impose conditions while granting bail including those that can be imposed
under section 437(3) Cr.P.C. The latter section permits conditions that are
required in the interests of justice as considered necessary and also those that
the accused shall not commit similar offences.
9. In a recent decision of the Supreme Court in Frank Vitus v.
Narcotics Control Bureau and Others (2024 INSC 479), after referring to
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the decisions in Kunal Kumar Tiwari alias Kunal Kumar v. State of Bihar
and Another [(2018) 16 SCC 74] and Munish Bhasin and Others v. State
(Government of NCT of Delhi) and Another [(2009) 4 SCC 45] it was
observed that conditions of bail cannot be fanciful, arbitrary or freakish and
further that even a convict is not deprived of all his fundamental rights except
those according to procedure established by law.
10. Conditions that can be imposed while granting bail cannot be
arbitrary or fanciful and cannot be in total oblivion of the purpose of imposing
such conditions. Though, while granting bail, conditions can be imposed, they
must be proportional to the reason for imposing them and a balance has to be
struck between the liberty of the accused, his right to a fair trial and the need
to ensure his participation during trial. Though a condition can be imposed that
the accused shall not indulge in similar offences, restricting the exercise of
fundamental rights of an accused under the cover of such a condition is not
legally appropriate. In fact, conditions that may have a tendency to deprive
the accused of his rights ought not to be imposed by courts as held in the
decision in Parvez Noordin Lokhandwalla v. State of Maharashtra and
Another [(2020) 10 SCC 77].
11. Directions which are in the nature of blanket orders restricting the
right of a person to express an opinion cannot be issued under the guise of
imposing conditions while granting bail. Under Article 19(1)(a) of the
Constitution, a person is entitled to the right to freedom of expression. The
said right is subject only to reasonable restrictions as provided in Article 19(2)
of the Constitution. Expression of an opinion in relation to an incident certainly
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falls within the right contemplated under Article 19(1)(a) of the Constitution of
India. Many a time, these expressions or opinions by individuals have resulted
in probes that have led to startling revelations. Restricting the right to air such
views would be counter-productive. If in case such an opinion amounts to a
criminal offence, certainly, the aggrieved are entitled to seek appropriate
reliefs as the law enjoins upon them. Expression of opinion on public platforms
may invite those responsible for punitive or compensatory actions as well.
However such probabilities cannot be a reason to restrict the right of a person
from expressing his opinion or airing his views, that too, as a condition while
granting bail. Restricting the publishing of any news relating to the death of a
person is in effect prejudging the issue that such broadcasts of news would
amount to an offence. A condition of that nature has all the trappings of a gag
order.
12. The courts have quite often come down heavily upon gag orders
being issued unless such gag orders are extremely essential in the
circumstances. In Arnab Ranjan Goswami v. Union of India and Others
[(2020) 14 SCC 12], the Supreme Court had observed that the exercise of
journalistic freedom lies at the core of speech and expression protected by
Art.19(1)(a) and as a media journalist the airing of views on television-shows
is in the exercise of the said fundamental right. It was further noted, in
support of the said right, that the freedoms available in India will rest safe as
long as journalists can speak truth without being chilled by a threat of reprisal.
The Court went on to observe that the right of a journalist to ensure that an
informed society exists is required to be protected though the said right is no
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higher than the right of the citizen to speak and express. The Court further
held that free citizens cannot exist when the news media is chained to adhere
to one position.
13. Similarly in the decision in Muhammed Zubair v. State of NCT
of Delhi and Others [2022 INSC 736] it has been held that a blanket order
preventing a person from tweeting cannot be imposed. The following
observations are apt in the instant case:
“Merely because the complaints filed against the petitioner arise from
posts that were made by him on a social media platform, a blanket
anticipatory order preventing him from tweeting cannot be made. A
blanket order directing the petitioner to not express his opinion - an
opinion that he is rightfully entitled to hold as an active participating
citizen - would be disproportionate to the purpose of imposing conditions
on bail. The imposition of such a condition would tantamount to a gag
order against the petitioner. Gag orders have a chilling effect on the
freedom of speech. According to the petitioner, he is a journalist who is
the co-founder of a fact checking website and he uses Twitter as a
medium of communication to dispel false news and misinformation in this
age of morphed images, clickbait, and tailored videos. Passing an order
restricting him from posting on social media would amount to an
unjustified violation of the freedom of speech and expression, and the
freedom to practice his profession.”
14. Petitioner is entitled to have an opinion relating to the death of
the Bishop of the Believers Church. He is also entitled to express his views and
opinions. This is a facet of his freedom of expression. Petitioner cannot
therefore be restrained from expressing his views through a condition in a bail
order. However, if his expression of views creates a criminal offence, he may
have to face actions as contemplated under law. However, such a possibility
cannot be a reason to restrain the exercise of his fundamental right to express
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as an individual or his journalistic freedom.
15. In view of the above discussion, this Court is satisfied that
condition No.5 in the impugned order dated 15.6.20204 to the extent it
restrains the accused from broadcasting any news or giving any interview
relating to the death of Sri. K.P.Yohannan on any news channel or any
newspaper is an unreasonable condition. The said condition No.5 in the
impugned bail order, to the above extent, is hence deleted.
This Crl.M.C is allowed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
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APPENDIX OF CRL.MC 6319/2024
PETITIONER'S/S' ANNEXURES
Annexure - I THE TRUE COPY OF THE UDYAM REGISTRATION
CERTIFICATE ISSUED FROM THE MINISTRY OF
MICRO, SMALL AND MEDIUM ENTERPRISES,
GOVERNMENT OF INDIA
Annexure-II THE TRUE COPY OF THE PETITION DATED
28.05.2024 SUBMITTED BY THE PETITIONER TO THE
DIRECTOR GENERAL OF POLICE
Annexure-III THE TRUE COPY OF THE PETITION DATED
24.05.2024 SUBMITTED BY BISHOP MATHEWS MOR
SILVANOSE TO THE SHO, MUSEUM POLICE STATION
Annexure-IV TRUE COPY OF THE FIR IN CRIME NO. 752/2024 OF
MUSEUM POLICE STATION, THIRUVANANTHAPURAM
Annexure-V TRUE COPY OF THE REPORT DATED 01.06.2024
SUBMITTED BY THE POLICE IN THE CRIME
Annexure-VI THE CERTIFIED COPY OF THE ORDER DATED
15.06.2024 IN CRL MC NO. 1466/2024 ON THE
FILES OF THE ADDITIONAL SESSIONS JUDGE-V,
THIRUVANANTHAPURAM
Annexure-VII TRUE COPY OF THE NOTICE DATED 09.07.2024
ISSUED FROM THE MUSEUM POLICE STATION,
THIRUVANANTHAPURAM
