VINOD DUA v. UNION OF INDIA & Ors.

Vikas Singh, Sr. Adv., Varun Singh, Nitin Saluja, Ms. Deepeika Kalia, Kapish Seth, Akshay Dev, Ms. Deepti Arya, Rishabh Rana, Mritunjay Singh, Satwik Mishra, Advs. for the Petitioner. Tushar Mehta, SG., S.V. Raju, ASG., Vikas Mahajan, AAG., Mahesh Jethmalani, Vinay Navare, Sr. Advs., B.V. Balaram Das, Ms. Kanu Agrawal, Vinod Sharma, Neeraj, Ms. Siya Chaudhary, Ravi Sharma, Satya Ranjan Swain, Shoumendu Mukherjee, Vijay Joshi, Himanshu Pathak, Ms. Priya Mishra, Ms. Damini Garg, Ms. Vandana Deewan, Surender Kumar Gupta, Advs. for the Respondents. B C The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

#1. This petition under Article 32 of the Constitution of India prays D for following principal reliefs:- “a. Quash FIR No.0053 dated 06.05.2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh. b. Direct that henceforth FIRs against persons belonging to the media with at least 10 years standing be not registered unless cleared by a committee to be constituted by every State Government, the composition of which should comprise of the Chief Justice of the High Court or a Judge designated by him, the leader of the Opposition and the Home Minister of the State.”

#2. FIR No.0053 dated 06.05.2020 was registered pursuant to Complaint made by respondent No.3 herein to the following effect:- “On 30th March, 2020, Mr. Vinod Dua, in his show namely The Vinod Dua Show on YouTube, has made unfounded and bizarre allegations (details of particular moments are provided below) by stating following facts at 5 minutes and 9 seconds of the video, he has stated that Narendra Modi has used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds of the video, he E F G H 1082 SUPREME COURT REPORTS [2021] 12 S.C.R. A B C D E F G H claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitizer exports were stopped only on 24th March 2020. A true copy of the video link is: https:/ /www.youtube.com/ watch?vvijFD_tgvv8. That the said allegations are false and the claims are bizarre and unfounded. Mr. Vinod Dua has spread false and malicious news by stating that the PM has garnered votes through acts of terrorism. This directly amounts to inciting violence amongst the citizens and will definitely disturb public tranquillity. This is an act of instigating violence against the government and the Prime Minister. He also creates panic amongst the public and disturbs public peace by trying to spread false information, such as, the government does not have enough testing facilities which is absolutely false. The government has sufficient facilities to curb the pandemic and have been taking all the measures to control the pandemic. By making such false statements, Mr. Vinod Dua spread fear amongst the people. This video will only create a situation of unrest amongst the public which will result in panic and people not obeying the lockdown to come out and hoard essentials which is absolutely unnecessary. Mr. Vinod Dua has circulated these rumours with the intent to defeat the Lockdown by creating an impression that there is a complete failure of the institution and it will become hard to survive this lockdown, if not acted upon immediately. It is unfortunate that during such a pandemic, which is of such a magnitude, instead of helping out the citizens and encouraging them to stay at home, the show and the host, Mr. Vinod Dua, is only interested in raising his show’s TRP and making it successful. The rumours were spread with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public, whereby any person may be induced to commit an offence against the state or against the public tranquillity. Since the matter relates to Public health, considering the gravity and seriousness of the matter, this dishonest and fraudulent act of the Mr. Vinod Dua should be taken with utmost seriousness. The aforesaid act of Mr. Vinod Dua is an offence punishable under Sections 124-A, 268, 501 and 505 of the Indian Penal Code, 1860 (IPC). Unless strict action is taken, VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] 1083 it will result in unrest in public and go against public tranquillity. Hence, you are requested to take strict appropriate legal action against Mr. Vinod Dua and punish him accordingly.”

#3. The FIR dated 06.05.2020 thus pointedly referred to two segments in the talk show uploaded on 30.03.2020 – one at 5 minutes 9 seconds and the other at 5 minutes 45 seconds and generally dealt with the drift of the assertions made by the petitioner in said talk show to submit that the actions on part of the petitioner amounted to offences punishable under penal provisions referred to in the FIR. The transcript of the relevant episode of the talk show has been placed on record and the translation of the relevant portions is :- “At present I am talking about the ongoing corona virus and whatever has happened in its context – how was our preparedness, when we were alerted and despite which why we were in slumber. When I refer to WE then I refer to the government. I present a small analysis on which a few things have been stated by P. Chidambaram in an article in the Indian Express, some of this we have also seen and you understand all of the rest very well. ….. Now, the national lockdown, desh bandhi, note bandhi, GST are the three big events. Our work as media, we do not stoop, we are not darbari, we are not from the government, our job is not to denigrate, our job is not also to criticize, our job is to do critical appraisal of government’s work. We do not need anything from the government or anyone’s complaisance. Media has to do this work but unfortunately most of the media is towing the line of the government or their stoogas. They look for support in everything to turn everything into an event of the Pradhan Sewak and to tout that as a big success. In the case of attacks on India on Pathnakot and Pulwama the same were used as political events to garner votes, surgical strikes were also used as gain politically. The air strikes by India on Balakot were also used as means of getting votes. To seek votes by turning everything into an event has become the hallmark of this government, this is our call of duty and our dharma to present these before you, so we are saying these. Further, our biggest failure has been that we do not have enough facilities to carry out testing. Undoubtedly, ICMR and Health Ministry maintain that corona in India is still in 2nd stage and has A B C D E F G H 1084 SUPREME COURT REPORTS [2021] 12 S.C.R. A B C D E F G H not reached in 3rd stage when community transmission takes place. At the present juncture India needs 7 lakh PPE suits, 6 lakh N95 masks and 8 crore masks of three ply. Till now we do not have any information how many we have and how many will become available by when. The ventilators needed in other countries and in India, respiratory devices and sanitizers were being exported till 24 March instead of keeping these for use in our country. Supply chains got disrupted due to blockage of roads and now it is being heard that transportation of essential goods has been allowed. It is not difficult to imagine that when the supply chains have been closed, when the shops are closed, some people had gone to the extent of fearing food riots which have not happened in our country could happen. Therefore the government is now taking steps which should have been taken at least 15 days earlier. On 11 February, ICMR had forewarned, later Rahul Gandhi did the same by writing a letter on 12 February and again 13 February but the government kept sleeping. Now, the migrant labour which is a huge issue, the people who leave their distant villages to earn their livelihoods here, who are the backbone of the cities, who help in running our lives, our drivers, our daily wagers, construction workers, tailors, all those who do small odd jobs and somehow send money back home. There are certain states like Bihar which also run on money order economy where it caused huge disruption and who started returning home. When people started returning from Mumbai on 10 March, that should have been a big signal for the government about the effect the complete lockdown in the whole country can bring about but no lessons were learnt. Besides, police did not get any instructions about how to handle this, the face of brutality and inhumanity of the police was seen and now the face of the police is also seen while distributing food and also their face of shaming those not following the lockdown. These steps could have been taken earlier also because using force is not the only way of the police.

#4. Certain factual developments that occurred after the registration of the FIR were noted in the Order dated 14.06.2020 passed by this Court as under:- “A Notice for Appearance dated 11.06.2020 was issued by the office of Station House Officer, Police Station Kumarsain, District VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] 1085 Shimla, Himachal Pradesh, under Section 160 Cr.P.C. to the following effect: A “A Case FIR No.53/2020 Dated 06.05.2020 U/s 124A, 268, 501, 505 IPC has been registered in Police Station Kumarsain, Distt. Shimla, HP on the complaint of Sh. Ajay Shyam, Vill & PO Kiara, Tehsil Theog, Distt. Shimla HP against (You) Mr. Vinod Dua Journalist, HW News Network. In above said case your presence is required for interrogation. So you are therefore directed to join investigation at Police Station Kumarsain on or before 13/06/2020 at 10 am sharp.” A response to the above notice was sent by the petitioner on 12.06.2020 stating inter alia: “I have received your notice dated 11.06.2020 seeking my physical presence for the interrogation of FIR dated 06.05.2020, on 13.06.2020 before the police station in Kumarsain, Himachal Pradesh. I wish to bring to your notice as per Himachal Pradesh covid guidelines dated 11.05.2020, any person coming from the red zone is directed to be in institutional quarantine for a period of 14 days. Since I reside in New Delhi which is currently a red zone, I would be forced to be in quarantine for a period of 14 days. Further, I wish to bring to your kind notice that I am 66 plus years old. Therefore, as per MOH guidelines, all citizens of 65 plus age are asked not to travel due to health safety risks. Further I suffer from Thalassemia minor with Iron deficiency anaemia, pancytopenia (low red & white blood cell and low platelet count), chronic liver disease with portal hypertension & splenomegaly, diabetes and hypothyroidism. I also have oesophageal varices with a high risk of bleeding. Therefore doctors have stated that stepping out of my house would be life endangering. I am attaching my medical certificate herewith. Meanwhile, I would join the investigation through email or any other online mechanism.” B C D E F G H 1086 SUPREME COURT REPORTS [2021] 12 S.C.R. A While issuing notice in the petition, the Order dated 14.06.2020 recorded further: - “Mr. Vikas Singh, learned Senior Counsel appearing for the petitioner submitted that the Himachal Pradesh Police had contacted the petitioner day before yesterday in connection with the investigation in the crime referred to above. Considering the circumstances on record, we deem it appropriate to direct as under: (a) Pending further orders, the petitioner shall not be arrested in connection with the present crime; (b) However, the petitioner in terms of the offer made by him in his communication dated 12.06.2020, shall extend full cooperation through Video Conferencing or Online mode; and (c) The Himachal Pradesh Police shall be entitled to carry on the investigation including interrogation of the petitioner at his residence after giving him prior notice of 24 hours and complying with the Social Distancing norms prescribed during Covid-19 Pandemic. The affidavit in reply filed on behalf of the State shall indicate the steps taken during investigation and a complete Status Report shall be filed before the next date of hearing. The concerned Investigating Officer shall remain personally present in case the open Court hearing is resumed by this Court or shall be available in case the proceedings are taken up through Video Conferencing mode.”

#5. Some of the grounds raised in the instant writ petition relating to the prayers quoted hereinabove are: “A. Because the contents in the video is pure and simple critical analysis by the Petitioner of the functioning of the Government and cannot by any stretch of imagination be said to be offences under Sections 124-A, 268, 501, 505 of IPC. B. Because the decisive ingredient for establishing the offence of sedition under Section 124-A IPC is the doing of certain acts which would bring to the Government established by law in India hatred or contempt etc. which would incite violence or create public disorder. In the present case, there is not even a suggestion that B C D E F G H VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] 1087 the Petitioner did anything against the Government of India or any other Government of the State. A R. Because seeking quashing of the FIR dated 06.05.2020 is part prayer, the petitioner through this petition is also seeking guidelines from this Hon’ble Court in respect of lodging of FIRs against persons belonging to the media of a particular standing as done in the case of medical professionals vide judgment in Jacob Mathew v. State of Punjab (2005) 6 SCC 1 para 51, 52 affirmed by the Constitution Bench Judgment in Lalita Kumari v. Government of Uttar Pradesh and others (2014) 2 SCC 1 para 115.”

#6. The affidavit in reply filed on behalf of the State referred to Sections 52 and 54 of the DM Act1 as under: “At this juncture, it may be noticed that the entire world is passing through an unprecedented international crises in the form of a pandemic. India also is no exception. In case of a pandemic, any false news necessarily have a tendency of creating panic and, therefore, the Disaster Management Act provides for certain offences and penalties. Sections 52 and 54 of the Disaster Management Act read as under:- “Section 52. Punishment for false claim.- Whoever knowingly makes a claim which he knows or has reason to believe to be false for obtaining any relief, assistance, repair, reconstruction or other benefits consequent to disaster from any officer of the Central Government, the State Government, the National Authority, the State Authority or the District Authority, shall, on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine. Section 54. Punishment for false warning.- Whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine.” Thereafter, the affidavit indicated following steps taken by the Investigating machinery: 1 The Disaster Management Act, 2005 B C D E F G H 1088 SUPREME COURT REPORTS [2021] 12 S.C.R. “Having found that complaint disclosed cognizable offence, the FIR was registered. In respectful submission of the respondent, since a FIR discloses prima facie commission of cognizance offence, no interference may be warranted. That after registration of FIR, on 07.05.2020 the complainant was called in the Police Station but he did not appear as he was out of station. On 08.05.2020 complainant joined the investigation in the Police Station and produced one DVD containing telecast dated 30.03.2020 as referred in the FIR which was taken into possession by the Investigating Officer through seizure memo and statement of Sh. Ajay Shyam was recorded u/s 161 Cr.P.C. That on 11.05.2020, Investigating Officer visited Cyber Crime Police Station from where Notice u/sec 91 Cr.P.C. was sent to Google and YouTube through e-mail for obtaining information in respect to URL of the channel and URL of the post.”

#7. The original complainant (Respondent No.3) stated in his response as under: “It is submitted that, on 30.03.2020, the petitioner in his show, ‘The Vinod Dua Show’ telecasted on You Tube in Episode No.255 made false allegations regarding preparedness for the pandemic Covid-19 which were clearly in violation of Sections 124-A, 268, 501 and 505 IPC. The entire content/transcript of the episode has been reproduced in the Writ Petition at pages 45 onwards at Annexure A-2. It is submitted that, on 21.04.2020, when the respondent was surfing on the internet on his mobile that, he had the occasion to watch the said alleged video of the petitioner. He strongly felt that the contents of the video had a tendency to create disturbance of public peace against the government established by law. …… It is submitted that, in the present case, prima facie the offences u/s 124-A, 268, 501 and 505 of the IPC are clearly made out and more serious offences will emerge once the material supplied by the answering respondent is investigated, and therefore, there is no ground for quashing the present FIR. If the statements in the A B C D E F G H VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] 1089 video are seen in its entirety, then the mala fide intention of the petitioner is apparent and all is being said to incite people and create disaffection and hatred in the minds of the people against the Government of India and that too during these difficult times of pandemic Covid-19.” Respondent No.3 then referred to the other episodes of talk show of the petitioner uploaded on 02.03.2020, 31.03.2020, 01.04.2020 and 01.06.2020 to emphasize the alleged tendency on part of the petitioner of making statements which were devoid of truth.

#8. The Status Report placed for perusal of this Court in pursuance of the order dated 14.06.2020, inter alia, gave details about HW News owned by Theo Connect Private Ltd.

#9. Appearing for the petitioner, Mr. Vikas Singh, learned Senior counsel submitted: - A) The statements in the FIR that, “Hon’ble Prime Minister used threats and terror acts to garner votes”; and “Prime Minister garnered votes through act of terrorism” were factually incorrect. No such assertions were made by the petitioner. B) The basic allegations in the FIR were required to be seen in the light of the law laid down by this Court in Kedar Nath Singh vs. State of Bihar2 and subsequent cases. Viewed thus, the provisions of Section 124A of the IPC3 would not get attracted at all. C) As a journalist, the petitioner was entitled to and did nothing more than critical analysis of the functioning of the Government. D) The ingredients constituting offences under Sections 501 and 505 of the IPC3 were also not established. E) Consequently, the criminal proceedings initiated against the petitioner being abuse of the process and being violative of the fundamental rights guaranteed under the Constitution of India, the same be quashed.

#10. In support of the second prayer made in the petition, Mr. Singh submitted: - 2 (1962) Supp. 2 SCR 769 3 The Indian Penal Code, 1860 A B C D E F G H 1090 SUPREME COURT REPORTS [2021] 12 S.C.R. A B C D E F G H In Jacob Mathew v. State of Punjab and Another4, this Court issued certain guidelines with regard to prosecution of Medical Professionals accused of rashness or negligence while discharging their professional duties; which decision was not only affirmed by the Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh and Others5 but this Court went on to explain that a preliminary inquiry could validly be insisted upon in certain categories of cases. The case of journalists as a category be considered on similar lines, so that the journalists can, without any hindrance or fear of unwarranted prosecution fulfil their duties. The protection suggested in the second prayer would afford and ensure protection against such unwarranted prosecutions.

#11. Mr. Tushar Mehta, learned Solicitor General of India appeared for State of Himachal Pradesh and submitted: - A) The instant petition under Article 32 of the Constitution of India, seeking quashing of the FIR may not be entertained and the petitioner be relegated to remedies available under the Code6. B) At the present stage, the allegations made in the FIR were required to be presumed to be true and the matter be allowed to be investigated into. C) The attempts on part of the petitioner were to spread misinformation or incorrect information and cause panic in the perception of the general public; for example, the statement that some people feared that there could be food riots post lockdown was without any basis and had clear potential of spreading panic. Such action would be covered and be punishable under Sections 52 and 54 of the DM Act1. D) Whether such statements were deliberate or unintended and innocent assertions, would be a matter for investigation and as such no case was made out for interference at the present stage. E) The episode in question was uploaded on 30.03.2020 and migrant workers in many metropolitan cities and towns had started walking towards their hometowns seriously jeopardising their own health and safety and that of the society in general.