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2020 (5) TMI 702

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..... , 500, 504 and 506 of the Indian Penal Code - The manner in which the Petitioner has been subjected to numerous FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the Petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views. In such a situation to require the Petitioner to approach the respective High Courts having jurisdiction for quashing would result into a multiplicity of proceedings and unnecessary harassment to the Petitioner, who is a journalist. The transfer of an investigation to the CBI is not a matter of routine. The precedents of this Court emphasise that this is an extraordinary power to be used sparingly and in exceptional circumstances - The principle of law that emerges from the precedents of this Court is that the power to transfer an investigation must be used sparingly and only in exceptional circumstances . In assessing the plea urged by the Petitioner tha .....

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..... sposed off. - Writ Petition (Crl.) No. 130 of 2020 and Writ Petition (Crl.) Diary No. 11189 of 2020 - - - Dated:- 19-5-2020 - Dr. D.Y. Chandrachud And M.R. Shah, JJ. JUDGMENT Dr. D.Y. Chandrachud, J. Writ Petition (Crl.) No. 130 of 2020 1. The Petitioner is the Editor-in-Chief of an English television news channel, Republic TV. He is also the Managing Director of ARG Outlier Media Asianet News Private Limited which owns and operates a Hindi television news channel by the name of R Bharat. The Petitioner anchors news shows on both channels. 2. On 16 April 2020, a broadcast took place on Republic TV. This was followed by a broadcast on R Bharat on 21 April 2020. These broadcasts led to the lodging of multiple First Information Reports [FIRs] and criminal complaints against the Petitioner. They have been lodged in the States of Maharashtra, Chhattisgarh, Rajasthan, Madhya Pradesh, Telangana and Jharkhand as well as in the Union Territories of Jammu and Kashmir. In the State of Maharashtra, an FIR was lodged at Police Station Sadar, District Nagpur City. The details of this FIR are: Maharashtra FIR No. 238 of 2020, dated 22 April 2020, registered at Po .....

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..... outh Congress. 3. The genesis of the FIRs and complaints originates in the broadcasts on Republic TV on 16 April 2020 and R Bharat on 21 April 2020 in relation to an incident which took place in Gadchinchle village of Palghar district in Maharashtra. During the course of the incident which took place on 16 April 2020, three persons including two sadhus were brutally killed by a mob, allegedly in the presence of the police and forest guard personnel. The incident was widely reported in the print and electronic media. The petition states that a video recording of the incident is available in the public domain. In his news show titled Poochta hai Bharat on 21 April 2020 on R Bharat, the Petitioner claims to have raised issues in relation to the allegedly tardy investigation of the incident. The segment of the news broadcast is available for public viewing online at: https://www.youtube.com/watch?v=C2i4MMpKu9I 4. The viewpoint which the Petitioner claims to have put across during the course of the broadcast, is described in the following extract from the Writ Petition which has been instituted by the Petitioner before this Court Under Article 32 of the Indian Constitution: .....

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..... communal nature in the course of the news broadcasts which gave rise to the institution of numerous complaints. Asserting his fundamental right to the freedom of speech and expression Under Article 19(1)(a) of the Constitution, the Petitioner has moved this Court Under Article 32 for the protection of those rights. The reliefs which have been sought are: (i) Quashing all the complaints and FIRs lodged against the Petitioner in multiple States and Union Territories; (ii) A writ direction that no cognisance should be taken of any complaint or FIR on the basis of the cause of action which forms the basis of the complaints and FIRs which have led to the present writ proceedings; and (iii) A direction to the Union Government to provide adequate safety and security to the Petitioner and his family as well as to his colleagues at Republic TV and R Bharat. 8. While entertaining the Writ Petition on 24 April 2020, this Court heard submissions by Senior Counsel: on behalf of the Petitioner by Mr. Mukul Rohatgi and Mr. Siddhartha Bhatnagar; on behalf of the State of Maharashtra by Mr. Kapil Sibal; on behalf of the State of Chhattisgarh by Mr. Vivek Tankha; and on behalf of the St .....

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..... be no objection to the transfer of the FIR which has been lodged at Nagpur to Mumbai. Consequently, this Court, by its interim order: (i) Transferred FIR 238 of 2020 lodged at Police Station Sadar, District Nagpur City to the NM Joshi Marg Police Station in Mumbai with a clarification that the Petitioner shall cooperate in the investigation; (ii) Stayed further proceedings arising out of the complaints and FIRs other than the one which had been instituted at Police Station Sadar, District Nagpur City and stood transferred; (iii) Allowed the investigation to proceed in FIR 238 of 2020 which was transferred from Police Station Sadar, District Nagpur City to the NM Joshi Marg Police Station in Mumbai; (iv) Protected the Petitioner against coercive steps arising out of and in relation to the above FIR, in relation to the telecast dated 21 April 2020; (v) Granted liberty to the Petitioner to move an application for anticipatory bail before the Bombay High Court Under Section 438 of the Code of Criminal Procedure 1973 [CrPC] and to pursue such other remedies as are available in law. It was clarified that any such application shall be considered on its own merits by .....

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..... ing [VC] ; (c) Rejecting the above request, the IO called upon the Petitioner by a summons dated 26 April 2020 to be physically present at NM Joshi Marg Police Station in Mumbai on 27 April 2020; (d) On 27 April 2020, the Petitioner was questioned without a break for nearly twelve hours during which he was not allowed to keep possession of his mobile phone or to wear his personal fitness band; (e) During the course of the investigation, the Petitioner was informed by the Mumbai police that the complainant Dr Nitin Kashinath Raut, who is a Cabinet Minister in the Maharashtra government and a working President of the INC, had filed a supplementary statement indicating when he had been provided with a clip of the broadcast; (f) A substantial bulk of the questions during the investigation was in relation to a small segment comprising fifteen seconds out of a total broadcast of fifty-two minutes; (g) During the course of the investigation, the Petitioner was asked by the IO whether he had defamed or maligned the President of the INC in the course of the broadcast on 21 April 2020; (h) FIR 164 of 2020 is not based on a complaint by the President of the INC and hence, .....

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..... , he's a senior journalist, and he has handled the media well till now but what happened lately. I don't know. During his speech, he forgot that he's a citizen of this country and a citizen has to abide by the Constitution. I have always supported freedom of expression for journalists but the question is, these comments involve a clear attempt to incite a riot. Arnab was questioned for along during because he's facing a charge of criminal conspiracy, involving Indian Penal Code 153, Indian Penal Code 153(a) and others. You raise the point of him being questioned for 12 to 12.5 hours, I want to ask you that this country's former home minister and former finance minister P. Chidambaram was made to sit for so many hours, why did that happen? You people never raise questions on the reason behind that interrogation. I have heard that clip and Arnab tried to stoke communal sentiments in that speech. No one gave him that right, not even the Constitution. (l) On 30 April 2020, the IO issued two notices to the Chief Financial Officer [CFO] of Republic TV Under Sections 91 and 160 of the Code of Criminal Procedure requesting for documents. Pursuant to the notice, t .....

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..... o the CBI or to an independent investigating agency; (iv) Permission to the Petitioner to join in the investigation by video conferencing; and (v) Providing security to the Petitioner and his family at his residence and for the business establishment. IA 48588 of 2020 [Filed by the State of Maharashtra] : filed by the Government of Maharashtra 13. The IA is supported by an affidavit of Abhinash Kumar, Deputy Commissioner of Police, Zone-3, Mumbai, who is supervising the investigation into Cr. No. 164 of 2020 at the NM Joshi Marg Police Station in Mumbai. The Mumbai police has sought to highlight the conduct of the Petitioner in obstructing the due course of investigation. The reliefs which have been sought in the IA are as follows: a. Issue appropriate directions as this Hon'ble Court may deem fit so as to insulate the investigation agency from any pressure, threat or coercion from the Petitioner and to enable the Investigating Agency to carry out its lawful obligations in a fair and transparent manner; b. Restrain the Petitioner from abusing the interim protection granted to the Petitioner vide the order dated 24th April 2020; 14. The basis of the IA ap .....

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..... , the CFO of Republic Media Network. The affidavit of the CFO attempts to support the case of the Petitioner that: (i) A prolonged interrogation is being carried out for a seemingly vindictive and malicious purpose; (ii) The CFO has been interrogated on the structure of the holding company, shareholding pattern and investors: matters which are extraneous to the investigation of the FIR; (iii) Questions have been posed during the course of the interrogation about the equity cash transactions, the names of the remaining stakeholders, investment by the key investor and the role of the Petitioner's spouse; and (iv) The CFO was interrogated on the editorial process of the channel, the editorial teams involved and the process whereby a programme is put together. The IO also inquired about how participants are chosen. IA 48586 of 2020: filed by the Petitioner 16. The Petitioner moved this IA seeking an amendment to the petition filed Under Article 32. The Petitioner seeks the addition of the following reliefs: (i) A declaration that Section 499 of the Indian Penal Code is violative of Article 19(1)(a) of the Constitution and is hence unconstitutional; (ii) A de .....

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..... cident of the public gathered in the area of Bandra railway station on 14/04/2020 clearly show that despite Jama Masjid, Bandra being a holy place of worship and despite having no connection with the incident of the gathering of migrant workers at Bandra railway station, Arnab Goswami gave it a communal colour and blamed the Muslim community of being responsible for the spread of Corona. By making statements such as the aforesaid repeatedly on the show, he has severely hurt the sentiments of the Muslim community. He has tried to create communal tensions, incite riots and deliberately hurt the sentiments of the Muslim community by insulting their place of worship. By directly connecting the gathering of migrant workers at the Bandra railway station on 14/04/2020 with Jama Masjid, Arnab Goswami disrupted communal harmony. His statements further implied that the Muslim community is violent and does not respect the law. Arnab Goswami as the owner and anchor of the said TV show has made these statements with an intention of create a strain/communal disharmony between the Hindu and Muslim communities. 19. Having adverted to the telecast which took place on 29 April 2020, the FIR makes .....

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..... edia bearing on the course of the interrogation; e. The complainant of the FIR, who is a Cabinet Minister in the State Government of Maharashtra, has gone on record in the course of an interview to target the Petitioner for airing his views; f. The investigation by the Mumbai police is directed against an alleged act of defamation committed against the President of the INC. The police are trying to implicate the Petitioner in the offence of defamation despite the settled position of law that absent a complaint by the person who is allegedly defamed, no FIR can be lodged; and g. The Petitioner has, in the course of his programmes on R Bharat and Republic TV, implicated the Maharashtra police and the State Government for their failure to investigate the Palghar incident. He has leveled serious allegations against the CP, Mumbai. Hence, there is an evident conflict of interest in the investigation being conducted by the Mumbai police and the Petitioner apprehends that a fair and impartial process will be denied to him were the investigation to continue; and (iv) In the circumstances which have been set out above, it is appropriate to protect the constitutional rights of th .....

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..... ets emanating from the channel during and after the interrogation; (vi) The Petitioner can have absolutely no grievance with the course of the investigation when he was summoned for interrogation only on one day between the date of the registration of the FIR and the present time; (vii) Mumbai police has no territorial jurisdiction or connection with the investigation which has been conducted into the Palghar incident; (viii) The conduct of the Petitioner would indicate that he has made baseless allegations against the CP, Mumbai for the first time after his interrogation took place on 27 April 2020. The attempt by the Petitioner is clearly to use his position as a media journalist to create an environment of ill-feeling towards the investigating agency; (ix) As regards the second FIR, no investigation has commenced and hence recourse to the jurisdiction of this Court Under Article 32 is premature; (x) Despite the liberty which was granted to the Petitioner by this Court in its order dated 24 April 2020, the Petitioner has neither moved the Bombay High Court for quashing the FIRs Under Section 482 of the Code of Criminal Procedure or for the grant of anticipatory bai .....

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..... gation. 25. Dr Singhvi submitted that an interrogation does not infringe personal liberty. On the basis of the above submissions, it has been urged that no case has been made out for the transfer of the investigation to the CBI. He urged that the second Writ Petition must, in any event, be dismissed. 26. At this stage, it is necessary to note that the attention of Mr. Kapil Sibal and Dr Singhvi, learned Senior Counsel was specifically drawn to the fact that the FIRs which were filed in various states by persons professing allegiance to the INC appear, prima facie, to be reproductions of the same language and content. Responding to this, Mr. Sibal fairly stated that in the exercise of the jurisdiction Under Article 32, this Court may well quash all the other FIRs and allow the investigation into the FIR which has been transferred to the NM Joshi Marg Police Station in Mumbai to proceed in accordance with law. Mr. Sibal has also urged that there cannot be any dispute in regard to the legal position that a complaint in regard to the offence of defamation can only be at the behest of the person who is aggrieved. Consequently, the FIR which has been presently under investigation a .....

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..... und to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Code of Criminal Procedure. The Court held that there can be no second FIR 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 is due to the fact that the investigation covers within its ambit not just the alleged cognisable offence, but also any other connected offences that may be found to have been committed. This Court held that once an FIR postulated by the provisions of Section 154 has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR as doing so would fail to comport with the scheme of the Code of Criminal Procedure. The court observed: 18. ...All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to h .....

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..... . Mst. Sita Devi (2002) 1 SCC 714 ( Kari Choudhary ) and State of Bihar v. JAC Saldanha (1980) 1 SCC 554 ( Saldanha ). The Court noted that in Kari Choudhary, this Court held that: 11. ...Of course the legal position is that there cannot be two FIRs against the same Accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. 30. In Saldanha, this Court had held that the power conferred upon the Magistrate Under Section 156(3) does not affect the power of the investigating officer to further investigate the case even after submission of the report Under Section 173(8). In Upkar Singh, this Court noted that the decision in Ram Lal Narang is in the same line as the judgments in Kari Choudhary and Saldanha and held that the decision in TT Antony does not preclude the filing of a second complaint in regard to the same incident as a counter complaint nor is this course of action prohibited by the Code of Criminal Procedure. In that context, this Court held: 23. Be that as it may, if the law .....

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..... f one and the same incident-the broadcast by the Petitioner on 21 April 2020 on R Bharat. The broadcast is the foundation of the allegation that offences have been committed under the provisions of Sections 153, 153A, 153B, 295A, 298, 500, 504 and 506 of the Indian Penal Code. During the course of the hearing, this Court has had the occasion, with the assistance of the learned Senior Counsel, to peruse the several complaints that were filed in relation to the incident dated 21 April 2020. They are worded in identical terms and leave no manner of doubt that an identity of cause of action underlies the allegations leveled against the Petitioner on the basis of the programme which was broadcast on 21 April 2020. Moreover, the language, content and sequencing of paragraphs and their numbering is identical. It was in this backdrop that Mr. Kapil Sibal, learned Senior Counsel fairly submitted (in our view correctly) that this Court may proceed to quash all the other FIRs and complaints lodged in diverse jurisdictions in the States, leaving open, however, the investigation in respect of the FIR 238 of 2020 dated 22 April 2020 transferred from the Police Station Sadar, District Nagpur City .....

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..... FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the Petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views. In such a situation to require the Petitioner to approach the respective High Courts having jurisdiction for quashing would result into a multiplicity of proceedings and unnecessary harassment to the Petitioner, who is a journalist. 34. The issue concerning the registration of numerous FIRs and complaints covering different states is however, as we will explain, distinct from the investigation which arises from FIR 164 of 2020 at NM Joshi Marg Police Station in Mumbai. The Petitioner, in the exercise of his right Under Article 19(1)(a), is not immune from an investigation into the FIR which has been transferred from Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai. This balance has to be drawn between the exercise of a fundamental right .....

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..... bility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. (Emphasis supplied) This principle has been reiterated in K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai (2013) 12 SCC 480. Dr. Justice B.S. Chauhan, speaking for a three judge Bench of this Court held: 13. ...This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instill confidence in the public mind, or where investigation by the State police lacks credibi .....

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..... titioner that the investigation must be transferred to the CBI, we are guided by the parameters laid down by this Court for the exercise of that extraordinary power. It is necessary to address the grounds on which the Petitioner seeks a transfer of the investigation. The grounds urged for transfer are: (i) The length of the interrogation which took place on 27 April 2020; (ii) The nature of the inquiries which were addressed to the Petitioner and the CFO and the questions addressed during interrogation; (iii) The allegations leveled by the Petitioner against the failure of the State government to adequately probe the incident at Palghar involving an alleged lynching of two persons in the presence of police and forest department personnel; (iv) Allegations which have been made by the Petitioner on 28 April 2020 in regard to CP, Mumbai; and (v) Tweets on the social media by activists of the INC and the interview by the complainant to a representative of R Bharat. 39. As we have observed earlier, the Petitioner requested for and consented to the transfer of the investigation of the FIR from the Police Station Sadar, District Nagpur City to the NM Joshi Marg Police St .....

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..... : 4. ...refrained from making any comments on the manner in which investigation was being conducted by the CBI, looking to the fact that the investigation was far from complete. This Court observed that: 4. ...Any observations which may amount to interference in the investigation, should not be made. Ordinarily the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralise the investigation. Of late, the tendency to interfere in the investigation is on the increase and courts should be wary of its possible consequences. This Court adopted the position that courts must refrain from passing comments on an ongoing investigation to extend to the investigating agencies the requisite liberty and protection in conducting a fair, transparent and just investigation. 41. The contention of the Petitioner that the length of the investigation or the nature of the questions addressed to him and the CFO during the interrogation must weigh in transferring the investigation cannot be accepted. The investigating agency is entitled to determine the nature of the questions and the period of questioning. The Petitio .....

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..... te would have far-reaching consequences for the federal structure. We are disinclined to do so. 44. In assessing the contention for the transfer of the investigation to the CBI, we have factored into the decision-making calculus the averments on the record and submissions urged on behalf of the Petitioner. We are unable to find any reason that warrants a transfer of the investigation to the CBI. In holding thus, we have applied the tests spelt out in the consistent line of precedent of this Court. They have not been fulfilled. An individual under investigation has a legitimate expectation of a fair process which accords with law. The displeasure of an Accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI. Courts assume the extraordinary jurisdiction to transfer an investigation in exceptional situations to ensure that the sanctity of the administration of criminal justice is preserved. .....

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..... except with the previous sanction of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government or any other public servant employed in connection with the affairs of the State and of the Central Government, in any other case. Sub-section (5) bars the Court of Sessions from taking cognisance of an offence Under Sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed. Sub-section (6) states that nothing in this Section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognisance of the offence upon such complaint . [Subramanian Swamy v. Union of India, Ministry of Law: (2016) 7 SCC 221 at paragraph 197] 46. Interpreting this provision, a two judge Bench of this Court in Subramanian Swamy v. Union of India, Ministry of Law (2016) 7 SCC 221 ( Subramanian Swamy ) held that neither can an FIR be filed nor can a direction be issued Under Section 156(3) of the Code of Crim .....

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..... igation at the NM Joshi Marg Police Station in Mumbai does not and cannot cover any alleged act of criminal defamation. We will clarify this in our final directions. 48. Before we conclude, it is necessary to advert to the interim order of this Court dated 24 April 2020. By the interim order, the Petitioner has been granted liberty to move the competent court in order to espouse the remedies available under the Code of Criminal Procedure. Hence, we clarify that this Court has not in the present judgment expressed any opinion on the FIR which is under investigation at the NM Joshi Marg Police Station in Mumbai. 49. We hold that it would be inappropriate for the court to exercise its jurisdiction Under Article 32 of the Constitution for the purpose of quashing FIR 164 of 2020 under investigation at the NM Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the Petitioner's liberty are governed by the Code of Criminal Procedure. Despite the liberty being granted to the Petitioner on 24 April 2020, it is an admitted position that the Petitioner did not pursue available remedies in the l .....

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..... ai. We find merit in the submission of Mr. Kapil Sibal, learned Senior Counsel that fairness in the administration of criminal justice would warrant the exercise of the jurisdiction Under Article 32 to quash all other FIRs (save and except for the one under investigation in Mumbai). However, we do so only having regard to the principles which have been laid down by this Court in TT Antony. The filing of multiple FIRs arising out of the same telecast of the show hosted by the Petitioner is an abuse of the process and impermissible. We clarify that the quashing of those FIRs would not amount to the expression of any opinion by this Court on the merits of the FIR which is being investigated by the NM Joshi Marg Police Station in Mumbai. 52. We find no reason to entertain the subsequent Writ Petition [Writ Petition (Crl.) Diary No. 11189 of 2020] which has been filed by the Petitioner in respect of the FIR lodged at Pydhonie Police Station (FIR 137 of 2020 dated 2 May 2020). The basis on which the jurisdiction of this Court was invoked in the first Writ Petition-the filing of multiple FIRs in various states-is absent in the subsequent Writ Petition (Crl.) Diary No. 11189 of 2020 .....

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..... -Antagrah, Kanker, Chhattisgarh. Complaint dated 22 April 2020 by Pritam Deshmukh (adv.), Durg District Congress Committee-to SHO city PS Durg, Chhattisgarh. Complaint dated 22 April 2020 by Suraj Singh Thakur, State Vice President, Indian Youth Congress-to Sr. Police Officer, Chirag Nagar, Ghatkopar East, Mumbai. Complaint dated 22 April 2020-Pankaj Prajapti (party worker of INC and ex-spokesperson NSUI) through counsel Anshuman Shrivastavas-Superintendent of Police, Crime Branch, Indore, Madhya Pradesh. Complaint dated 22 April 2020-Balram Jakhad (adv.)-to PS Shyam Nagar-Under Section 153, 188, 505, 120B in Jaipur. Complaint by Jaswant Gujar-to SHO Bajaj Nagar PS, Jaipur. Complaint dated 22 April 2020 by Fundurdihari, Ambikapur, District Sarguja, Chhattisgarh-Rajesh Dubey, Chhattisgarh State Congress Committee-to SHO Gandhi Nagar, Ambikapur-Under Section 153, 153A, 153B, 504, 505. Complaint dated 22 April 2020 in Telangana by Anil Kumar Yadav, State President of Telangana Youth Congress-to SHO Hussaini Alam-Under Section 117, 120B, 153, 153A, 295A, 298, 500, 504, 505 and 506. Also 66A of the IT Act. Complaint dated 23 April 2020 by Anuj Mis .....

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