The Delhi High Court Monday reserved its verdict on the plea by NewsClick's editor Prabir Purkayastha and its HR head Amit Chakraborty challenging their arrest and remand in a case under the Unlawful Activities Prevention Act (UAPA).
Justice Tushar Rao Gedela heard the accused and the Delhi Police before reserving the matter for order.
The Court also said that it would decide at a later stage whether it should issue notice and hear the prayer by the accused to quash the FIR against them.
During the hearing today, the accused said that the arrest and remand was illegal since they were not supplied with grounds of arrest and the same was in violation of the recent Supreme Court judgment in Directorate of Enforcement vs Roop Bansal and Ors (M3M case).
They also claimed that not a penny was received from China as alleged by the Delhi Police.
The Delhi Police on the other hand claimed that the accused wanted to compromise national security and integrity.
They also said that the judgment in M3M case would not apply in the instant case since the same was delivered on the same day the arrest happened, i.e. October 3 and the Delhi Police were not aware about it.
The Court was hearing a plea by NewsClick's editor Prabir Purkayastha and its HR head Amit Chakraborty challenging their arrest, remand and the FIR lodged against them in a case under the Unlawful Activities Prevention Act (UAPA).
Purkayastha and Chakraborty were arrested following a series of raids that were conducted in the wake of allegations made in a New York Times article that NewsClick was being paid to boost Chinese propaganda.
Both persons were remanded to seven days of police custody in the early hours of the morning of October 4. After they were not given a copy of the FIR, they approached a Delhi court in the matter, which on October 5 allowed their plea to get an FIR copy.
As per the FIR, the accused illegally received crores of rupees in foreign funds and deployed the same with an intention to disrupt the sovereignty, unity and security of India.
The FIR said that secret inputs suggest that substantial foreign funds were illegally funneled into India by both Indian and foreign entities. These funds, amounting to crores of rupees, were received by Newsclick through illegal means over a span of five years.
The funds were fraudulently infused by Singham, allegedly an active member of the Communist Party of China's Propaganda department, through a complex network of entities, it was alleged.
The FIR claimed that the illegally routed foreign funds were siphoned off by Purkayastha and associates Joseph Raj, Amit Chakraborty and Bappaditya Sinha among others.
Purkayastha and Chakraborty then moved the High Court to quash the FIR.
During the hearing today, Senior Advocate Kapil Sibal, appearing for Purkayastha, said that the grounds of arrest were not supplied to them during arrest or remand.
"The law is that they have to provide grounds of arrest and as I said till date that has not been done," he said.
He also said that the allegations raised in the FIR regarding Chinese funding, etc. are false.
"All these things mentioned are false. Not a penny has come from China. But today we are on the issue whether grounds of arrest were furnished or not," Sibal said.
Pertinently, he alleged that there has been overwriting in the remand records.
"Please see the remand application and the order of the judge. You can see that this has been inserted. There is an overwriting. Obviously this has been inserted. It is obvious," he contended.
Sibal also said that only the legal aid counsel was present when the accused were remanded and the accused were not informed.
"The order says legal aid counsel was present. I was not informed though. As per the Delhi High Court rules, if the accused is not present the court must pass an order of temporary remand," he claimed.
In this regard, Sibal also placed reliance on the Supreme Court's recent judgement in M3M case which ruled that grounds of arrest have to be supplied to the accused in writing.
"The Supreme Court said merely orally mentioning the grounds of arrest is not enough. This judgement came on October 3 and I was arrested the same day. Now they are saying this judgement doesn't apply. This is totally wrong," Sibal said.
Senior advocate Dayan Krishnan, also appearing for the accused, said that non-supply of grounds of arrest would be in violation of Article 22 of the Constitution.
"I was neither given grounds of arrest nor was I allowed to have my counsel present," he submitted.
He said that the Magistrate's remand order is unsustainable.
"Where does the magistrate say I am looking at the case diary? Where is the satisfaction that grounds of arrest were given? Where is it said that his lawyer was present," he said.
It is the duty of the magistrate is to satisfy himself that whether the accused has any objection to remand, Krishnan underscored.
"How does an accused do that? The choice of the lawyer has to be there. Why is a legal aid counsel there when they know i am being represented by Arshdeep Singh," Krishnan asked.
The counsel appearing for Chakraborty adopted all the submissions of Purkayastha but also added two additional contentions.
"l am suffering from 59% disability. Both my legs are paralysed because of the polio. The remand application makes no mention of my disability etc," he said.
It was also submitted that he was not in any way responsible for the news published by NewsClick and hence, cannot be clubbed with other accused.
"All my devices laptops etc have been seized. I have been summoned and I have always complied. I am not a journalist or editor I am not in any way responsible for what is published on the NewsClick website. Throughout this process I have been clubbed together and there has been no independent application of mind," it was stated.
Solicitor General (SG) Tushar Mehta appearing for Delhi Police said that the accused tried to compromise the integrity and stability of the nation.
"So far as arrests are concerned, I will not go into details but the fact is a huge sum (of money) came in. The purpose is to compromise the integrity and stability of the country," he said.
Newsclick has used an expression used by China to refer to Arunachal Pradesh, namely "Northern border of Myanmar", the SG added.
The SG also pointed out that the M3M judgment was pronounced on October 3 and uploaded on the Supreme Court website on October 4, while the arrests were made on October 3. Hence, the Delhi Police were not aware of it, he argued.
"The arrest in this case was made on October 3. Delhi police was not a party to the M3M case and therefore we were not aware of the judgement. This was uploaded on October 4," he said.
Pertinently, he also said that the Central government would be filing a review petition against that judgment before the apex court.
He further took strong objection to a submission by the accused that the Magistrate had tampered with records.
"They made an allegation against a judicial officer of having tampered with the record, this has to be taken very seriously. Such allegations can't be made orally or lightly. This has to be on affidavit. They should state who came to this conclusion that the record was tampered with. They say there is a subsequent addition," the SG stated.
"You are not disputing that it was received by WhatsApp?" the Court asked.
"No. Mr. Sibal said this was added later. I am saying the allegations that a judicial officer tampered with the record, that can't be taken lightly," the SG replied.
The SG also put forward the following suggestion.
"What would happen if the remand order is set aside, you go into judicial custody. Tomorrow the remand order is getting over. I can apply for fresh remand with supply to them and let the court decide if it is required or not. It is a wrong proposition to argue that if remand is quashed, they will be released on bail," he said.
In a case where merely the remand order is challenged, the accused goes into judicial custody and then he can apply for regular bail, SG stated.
He also reiterated that the arrest was legal since it was before the M3M judgment.
Meanwhile, Sibal responded to the SG's submission that the Delhi Police were not aware of the judgment.
"This judgement was pronounced in open court. The law applies from October 3 whether they knew about it or not. The law is for the whole country, whether ED or Delhi Police," he said.
He also rebutted the argument that the grounds were provided in the arrets memo.
"They say the grounds are in the arrest memo. I have shown you the arrest memo, the grounds are not there," he said.
The fact that a review is being filed does not change the law, he added.
During the previous hearing on October 6, the High Court had questioned the failure by the Delhi Police to include grounds for arrest in the remand application filed by the police to get custody of Purkayastha and Chakraborty.
Justice Gedela had observed that prima facie, this appeared to be contrary to a Supreme Court judgment, possibly referring to the top court's judgment in the M3M directors' case.