The arrest of Trinamool Congress leader Saket Gokhale for a second time on Thursday, based on the same tweet for which he was arrested on Monday, contravenes Supreme Court judgements, legal experts say.
The court has said in several judgements that multiple first information reports should not be registered on the same set of facts.
[Update: Gokhale was granted bail in the second case on Friday.]
The sequence of events
Gokhale has been arrested for tweeting Gujarati newspaper reports on December 1 claiming that a right to information response showed that Narendra Modi’s visit to Morbi, the district in Gujarat where the collapse of a bridge led to the death of 141 people on October 30, had cost Rs 30 crore. The Press Information Bureau put out a clarification, saying this information was false.
The same day, a Bharatiya Janata Party leader Bhalabhai Kothari, claiming that he was “disturbed by Gokhale’s tweet”, filed a police complaint in Ahmedabad. A first information report was lodged against Gokhale under sections of the Indian Penal Code, 1860 relating to forgery to harm reputation (Section 469), using a forged document as genuine (Section 471), printing defamatory material (Section 501) and statements conducive to public mischief (Section 501).
Gokhale was arrested on Tuesday by the Gujarat Police from Jaipur airport. He was granted bail on Thursday by a court in Ahmedabad. Within an hour of his release, however, a first information report was lodged against him in Morbi, It claimed that his tweet promoted enmity between different groups during election time, which violated Section 125 of the Representation of the People Act, 1951. Based on this first information report, Gokhale was rearrested.
Law on subsequent FIRs
The sequence of events in Gokhale’s case is not unusual, especially in politically motivated cases. This was evident in the cases against fact checker Mohammed Zubair earlier this year. Even after an accused person is given bail in a case, the police rearrests them in a new case or a pending one. This, de facto, ends up cancelling the court-awarded bail.
In Gokhale’s matter, both first information reports and arrests relate to the same tweet. In 2020, when at least 15 first information reports and complaints were registered against Republic TV anchor Arnab Goswami across India, based on two shows he had done, the Supreme Court quashed 14 of them. It allowed the police to continue investigating only one.
The court reiterated a long standing principle that a second complaint cannot be filed when “where the information concerns the same cognisable offence alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognisable offences”. This was because the investigation conducted by the police in an offence is not restricted to the offence that is reported. It is also meant to look into “other connected offences” that have been committed “in the course of the same transaction”.
‘Abuse of process’
Legal experts repeated the Supreme Court’s observations to emphasise that Gokhale’s rearrest was improper.
“It is an abuse of process,” said Delhi-based criminal lawyer Shahrukh Alam. “Another FIR should not have been registered on the same tweet.”
She said: “This flies afoul in the face of TT Antony and Arnab Goswami’s judgement.”
In the 2001 TT Antony case, the Supreme Court held that a second FIR should not be registered for the same offence. The court relied on this judgement in the Arnab Goswami case.
Former Allahabad High Court Chief Justice Govind Mathur reiterated the point. “This is improper,” he said. “If an offence has a first information report registered and a person has got bail, then for the same offence there is no need to arrest the person.”
Mathur said that the police should not have registered the second report against Gokhale. “However, sometimes the police may not have the information that another FIR has been registered somewhere else,” he added. “Thus, technically they can register another FIR.”
However, he noted that the investigating officer has to see whether there is an offence made out and whether there is a need for arrest. In this case, he emphasised, it was not.
Said Mathur, “This seems like a political arrest.”