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Synopsis

A Delhi court has recently rejected a plea moved by the Delhi Police against an order to release electronic devices seized from the editors of The Wire during a search conducted in October 2022.

The devices were seized after an FIR for forgery, defamation, and criminal conspiracy was lodged against them by Bharatiya Janta Party (BJP) IT cell head Amit Malviya.

Additional Sessions Judge (ASJ) Pawan Singh Rajawat of Tis Hazari Court said that if the press is not allowed to function and operate independently, it would cause serious injury to the foundations of our democracy.

The ASJ noted that the investigating agency, through the continuous seizure of electronic devices, impinged upon the fundamental rights of the news portal. “The press is considered the fourth pillar of our great democracy, and if it is not allowed to function and operate independently, it would cause serious injury to the foundations of our democracy,” it noted.

The judge upheld the previous order, which was passed in September, directing the release of the seized devices.

The counsel for Delhi Police argued that the earlier order was unjustified, illegal, and against the provisions of the law, more specifically the Information and Technology Act, 2000.

He further argued that the investigation against the accused persons was pending in respect of Section 66(C) and 66(D) of Information Technology Act, and despite that, CMM had ordered for release of case property without correctly understanding and interpreting Section 76 of the IT Act, which mandates the confiscation of electronic devices.

The counsel also argued that the electronic devices were required for further investigation of the case, and if released, the accused may tamper with them.

The court noted, “The investigating agency's continuous seizure of the electronic devices of the respondents is not only causing undue hardship to them but impinges upon their fundamental rights of freedom of profession, occupation, trade, or business as guaranteed under Article 19(1)(g) as well as freedom of speech and expression under Article 19(1)(a) of the Constitution of India as admittedly the respondents are working for news portal The Wire, which is engaged in disseminating news and information, and the electronic devices were being used for their work”.

It said that the impugned order not only safeguarded the interest of the respondents but had also ensured that respondents were duty bound to keep the devices safe from tempering and in case they noticed any anomaly with the devices, same would be immediately notified to the IO, and the devices be handed over to him.

The court rejected the Delhi Police’s arguments, stating that Section 76 of the IT Act is applicable only after the conclusion of trial. Citing various provisions of the CrPC, the court held that it had powers to “make orders as it thought fit for the proper custody of property produced before it” during any trial.

It further cited, relying on other judgments, that the power of the court remains when the investigation hasn’t concluded.

Notably, in September 2023, the court had ordered the release of electronic devices of The Wire’s editorial team, noting that the devices had been in possession of the police for a long time and that there were no reasonable grounds to hold on to them.

The devices of Siddharth Varadarajan, MK Venu, Sidharth Bhatia, Jahnavi Sen, and Mithun Kadambi were seized by police while investigating an FIR filed by Malviya alleging damage to his reputation following The Wire’s claim that Malviya had special powers to order the takedown of posts on Instagram.

Case Title: State v. Siddharth Varadarajan & Ors.