New Delhi: Dismissing a challenge by the Delhi Police to the direction of a lower court that it return electronic devices seized from The Wire‘s journalists last year as not maintainable in law, additional sessions judge Pawan Singh Rajawat on Wednesday observed that the continuous seizure impinges on the freedom of the press.
In September, chief metropolitan magistrate Siddhartha Malik of the Tis Hazari courts ruled that there were no reasonable grounds for the police to hold on to the devices since the investigating officer had possession of them for a very long time and the court had been told that the Forensic Science Lab had already taken mirror images for further investigation. The police’s argument that the devices might be needed again for subsequent investigation is “speculative in nature based on the presumption of coming to light some new fact at a later stage, which may or may not happen”, the magistrate had said, adding that devices cannot be kept indefinitely by the police.
The Wire was represented in court by Ashwath Sitaraman, Prasanna S. and Archit Krishna. The devices were seized by the police in October 2022 following a complaint against The Wire by a Bharatiya Janata Party leader.
The magistrate’s order was appealed by the Delhi Police before the additional sessions court. After hearing the arguments, judge Rajawat said that the press is the fourth pillar of democracy and “if it is not allowed to function and operate independently, it would cause serious injury to the foundations of our democracy”.
“…continuous seizure of electronic devices of the respondents, is not only causing undue hardship to them, but impinges upon their fundamental right 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.”
Judge Rajawat noted that the chief metropolitan magistrate’s order not only safeguarded the interest of The Wire‘s employees but also ensured that they are duty bound to keep the devices safe from tampering and if they notice any anomaly with the devices, they should immediately notify the investigating officer.
The judge noted that Section 457 of the Code of Criminal Procedure (CrPC) enables the court to decide the custody of property pending investigation and cited the Supreme Court’s order in Basava Kom Dyamangouda Patil (1977) to say that the police should not indefinitely keep property in its custody. The same verdict said that the court needs to determine if the property seized by the police is required in the future course of the trial.
Section 451 of the CrPC, judge Rajawat noted, gives the court wide discretion to make orders for proper custody of the property pending trial. “In the process the Court may incidentally be guided by the consideration as to who is the person prima facie entitled to the possession of the case property and hand over its possession to him with a view to safeguard his interest but that may not be the sole consideration for the Court while entrusting custody of the case property or property used in the commission of an offence etc. to any of the rival claimants,” the order says.