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Why SC clubbed FIRs against Zubair of Alt News and what the Constitution says about this

While Article 21 guarantees right to life, Article 20(2) says no one 'should be put twice to peril for the same offence'. It's been argued multiple FIRs for 1 offence violates both rights.

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New Delhi: The Supreme Court last week clubbed six FIRs registered against Alt News cofounder Mohammed Zubair in Delhi and Uttar Pradesh, for allegedly hurting religious sentiments through his different tweets and transferred the probe to Delhi Police. The top court also granted bail to Zubair, facilitating his release after more than three weeks spent in custody.

The Supreme Court decision came after three lower courts had denied him bail on three occasions.

The apex court is also set to examine a similar plea raised by former Bharatiya Janata Party spokesperson Nupur Sharma, to club cases registered against her for controversial comments against Prophet Muhammad during a television debate. The SC has already provided Sharma interim protection from arrest last week.

A bench of justices Surya Kant and J.B. Pardiwala — which had earlier criticised Sharma for her comments and declined to entertain her plea to club FIRs registered against her — has also issued notice to all respondents, including various states where FIRs have been registered in the case and the Union of India, on her second request.

In their respective petitions before the top court, Sharma and Zubair invoked the principle of “sameness of offence” to urge the apex court to club the FIRs registered against them.

The two also backed their petitions with references to earlier SC verdicts, which had held that multiplicity of FIRs in connection with one offence violates one’s constitutional right under Article 21 — right to life — and is also hit by the concept of “double jeopardy” under Article 20(2), which states no one “should be put twice to peril for the same offence”.

ThePrint looks back at SC verdicts, which have over the years reaffirmed this principle.

Also read: ‘No evidence to order CBI probe into 2009 Dantewada killings’, says SC, fines activist Rs 5 lakh

Protection against ‘double jeopardy’

The fundamental basis on which the clubbing of FIRs is sought is contained in Article 32 of the Indian Constitution, which provides for “remedies for enforcement of rights” assured to citizens.

This relief can only be sought in the top court, since a state high court does not have the jurisdiction to order transfer of a criminal case from one state to another.

There are various cases where the court has previously clubbed or consolidated multiple FIRs against an accused, to protect rights and freedoms of those facing a litany of cases arising out of one incident.

In 1960 , the Supreme Court deliberated on Article 20(2), which entails protection against double jeopardy. In this verdict, a constitution bench of the top court held that “To operate as a bar the second prosecution and the consequential punishment there under, must be for ‘same offence’.”

The crucial requirement for attracting the article is that the offence sought to be probed in multiple FIRs be the same

Judgments thereafter have recognised the principle of double jeopardy and provided relief to many from multiple prosecutions.

However, a judgment delivered in 2001 — in the case of TT Antony versus State of Kerala — underlined the “test of sameness” to club multiple FIRs.

In this case the top court discussed the legality of registering a second FIR and held that the same is impermissible under Articles 20(2) and 21 of the Constitution, as well as section 300 of the Code of Criminal Procedure (CrPc), which also prohibits double jeopardy.

It further held that once an FIR postulated by the provisions of Section 154 of CrPC — information given in a cognisable offence — has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR.

A clarification was given out in 2016 by the top court to the extent that in cases of separate transactions, more than one FIR is legally allowed.

This means in a case where separate transaction occurs after the first FIR has been lodged and the substance of allegations is different, then a second FIR is legally valid.

Relief from multiple prosecutions

There are examples of recent judgments providing relief to journalists from facing multiple prosecutions in varied jurisdictions initiated over their television shows.

For example, responding to a petition filed by Republic TV editor-in-chief Arnab Goswami in 2020, against FIRs registered against him in various states in relation to a broadcast, the top court had observed that “Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action is a violation of fundamental rights”.

Similarly, FIRs registered in Rajasthan, Telangana, Maharashtra and Madhya Pradesh, against television anchor Amish Devgan the same year — for allegedly hurting religious sentiments — were clubbed and transferred for probe in Ajmer, Rajasthan. The top court, however, refused to quash the cases against him.

Sanjali Saxena is a law student with the Delhi University and is an intern at ThePrint.

(Edited by Poulomi Banerjee)

Also read‘Right to be Forgotten’ finds steam in India, high courts seized of multiple petitions


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