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Jagisha Arora v. State Of Uttar Pradesh And Another
Factual and Procedural Background
The petitioner filed a writ petition under Article 32 of the Constitution challenging the arrest and continued incarceration of her husband, Prashant Kanojia. He had been arrested for social-media posts and was being proceeded against under Sections 500 and 505 of the Indian Penal Code, 1860, read with Section 67 of the Information Technology Act, 2000. A jurisdictional Magistrate had already passed an order of remand extending his custody until 22-6-2019, effectively keeping him in custody for about 13–14 days. The petitioner sought immediate relief from the Supreme Court, arguing that the deprivation of liberty was unwarranted.
Legal Issues Presented
- Whether Prashant Kanojia’s continued detention for the alleged offences violated his fundamental rights under Articles 19 and 21 of the Constitution.
- Whether a writ petition under Article 32 is maintainable for release from police custody when a remand order by a Magistrate is in force and the High Court has not been approached first.
Arguments of the Parties
Petitioner's Arguments
- The arrest and incarceration constitute an unjustified deprivation of liberty for the alleged social-media posts.
- Articles 19 and 21 guarantee non-negotiable fundamental rights that have been infringed.
State's Arguments
- The writ petition is not maintainable because a jurisdictional Magistrate has passed a valid remand order.
- The petitioner should have challenged the remand order through the Criminal Procedure Code.
- The Supreme Court should not entertain the matter before the High Court is approached, relying on the precedent State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC 745.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC 745 | A writ of habeas corpus is generally not maintainable when the detenue is in lawful police custody pursuant to a Magistrate’s remand order. | Relied upon by the State to contest maintainability; the Supreme Court declined to dismiss the petition on this ground, choosing instead to exercise its powers under Articles 32 and 142. |
Court's Reasoning and Analysis
The Court emphasized that fundamental rights, especially those protected by Articles 19 and 21, are “non-negotiable.” It acknowledged the usual self-imposed discipline of directing litigants to the High Court first, but held that Article 32 cannot be rendered nugatory in a clear case of deprivation of liberty. Observing that the remand order would keep Kanojia in custody for nearly two weeks solely for social-media posts, the Court found the State’s action “excessive.”
While the State invoked technical objections and the Tasneem Rizwan Siddiquee precedent, the Court elected not to “sit back on technical grounds.” Invoking its plenary powers under Article 142, it decided to “mould the relief” to do complete justice by ordering immediate release on bail.
Holding and Implications
ORDER: The petitioner’s husband, Prashant Kanojia, is to be released immediately on bail on terms set by the jurisdictional Chief Judicial Magistrate. The writ petition and pending applications are disposed of.
Implications: The decision underscores that the Supreme Court will intervene directly under Article 32 in exceptional cases of apparent liberty deprivation, notwithstanding procedural defaults or existing remand orders. It does not comment on the legality or propriety of the social-media posts themselves, nor does it establish new substantive precedent; its immediate effect is the restoration of personal liberty to the petitioner’s husband while allowing criminal proceedings to continue in accordance with law.
Order
1. In this writ petition under Article 32 of the Constitution of India, the petitioner has challenged the arrest and incarceration of her husband Prashant Kanojia against whom proceedings have been initiated under Sections 500 and 505 of the Penal Code, 1860 read with Section 67 of the Information Technology Act, 2000. We need not comment on the nature of the posts/tweets for which the action has been taken. The question is whether the petitioner's husband Prashant Kanojia ought to have been deprived of his liberty for the offence alleged. The answer to that question is prima facie in the negative.
2. The fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.
3. The learned Additional Solicitor General appearing on behalf of the State has opposed this allegation on various technical grounds including the ground that there is an order of remand passed by the jurisdictional Magistrate. It is also contended that the High Court should have first been approached.
4. Citing the judgment of this Court in State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC 745, the learned Additional Solicitor General argued that the question of whether a writ of habeas corpus could be maintained in respect of a person who was in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, had already been settled by this Court. This application, is, therefore not maintainable. It was argued that the order of remand ought to be challenged in accordance with the provisions of the Criminal Procedure Code. It was also argued that this Court does not ordinarily entertain writ petitions unless the High Court has first been approached.
5. As a matter of self-imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22-6-2019 which means that the petitioner's husband Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media.
6. We are not inclined to sit back on technical grounds. In exercise of power under Article 142 of the Constitution of India this Court can mould the reliefs to do complete justice.
7. We direct that the petitioner's husband be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate. It is made clear that this order is not to be construed as an approval of the posts/tweets in the social media. This order is passed in view of the excessiveness of the action taken.
8. Needless to mention that the proceedings will take their own course in accordance with law. The writ petition is disposed of accordingly. Pending application(s) also stand disposed of.
Court Masters
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