[Mohammed Zubair bail] 'Existence' and 'Exercise' of Power of Arrest Must be Distinguished: Supreme Court reiterates

Read Time: 10 minutes


The Court stated that when the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. 

In the judgment enlarging Mohammad Zubair, co-founder of Alt News, on interim bail in all 6 FIRs filed against him in Uttar Pradesh, the Supreme Court has reiterated the position it took in Arnesh Kumar v. State of Bihar (2014) concerning police arrests.

Court has held that though police officers are vested with the power to arrest individuals at various stages of the criminal justice process, this power is not unbridled. Court has noted, "The existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly."

Zubair was granted interim bail on July 20 in the cases lodged against him in Uttar Pradesh for allegedly hurting religious sentiments, fanning communal hate through inflammatory publications on microblogging website Twitter & for disrespecting Hindu Gods, however, the judgment copy was uploaded on the Supreme Court website on Monday. 

A full bench comprising Justices D.Y. Chandrachud, Surya Kant and A.S. Bopanna has held that police officers have to apply their mind to the case before them and ensure that the condition(s) in Section 41 are met before they conduct an arrest.

It has been observed that in terms of Section 41(1)(b)(ii) of the Criminal Procedure Code (CrPC), the police officer in question must be satisfied that such arrest is necessary to prevent the person sought to be arrested from committing any further offence, for proper investigation of the offence, to prevent the arrestee from tampering with or destroying evidence, to prevent them from influencing or intimidating potential witnesses, or when it is not possible to ensure their presence is court without arresting them.

Reiterating its observation in Arnesh Kumar (supra), where it was observed that “6. […] The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation against a person…”, the Court has declared that the guidelines laid down in the above judgment must be followed without exception.

“The reason … of the powers of arrest in relation to cognizable offences is laid down in Section 41. Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. The criminal law and its processes ought not to be instrumentalized as a tool of harassment,” Court has stated.

Further, on the argument of the State of UP that Zubair should be barred from tweeting while on bail, Court has held :

“Section 438(2) stipulates that the High Court or the Court of Sessions can direct a person to be released on conditional bail. The provision provides that the Court shall impose conditions in the context of the facts of a particular case. The list of illustrative bail conditions stipulated in Sections 437 and 438 relate to the need to ensure a proper investigation and fair trial or to prevent the accused from committing an offence similar to the one he is suspected of, or in the interest of justice. The phrase ‘interest of justice’ has been interpreted in prior judgments of this Court where it has been held that the discretion of the Court in imposing conditions on bail must be exercised judiciously and to advance a fair trial. The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.

The Court has held that a blanket order directing the petitioner (Zubair) to not express his opinion, which he is rightfully entitled to hold as an active participating citizen, would be disproportionate to the purpose of imposing conditions on bail.

It has also declared that passing an order restricting Zubair 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.

Case Title: Mohammad Zubair v. State of NCT of Delhi & Ors., WP (Crl.) No. 279 of 2022