Why was the NewsClick case quashed?

Did NewsClick violate FDI rules or FEMA regulations? How did the absence of an FDI cap at the time affect the case? What role did the RBI’s approval play in the ruling? What happened in the UAPA case against Prabir Purkayastha?

Journalists protest police actions against news portal NewsClick at Press Club of India, New Delhi, in October, 2023.Shashi Shekhar Kashyap

Aaratrika Bhaumik

The story so far:

The Delhi High Court has quashed the first information report (FIR) registered by the Economic Offences Wing (EOW) of the Delhi Police and the consequent money laundering proceedings initiated by the Enforcement Directorate (ED) against news portal NewsClick and its editor-in-chief, Prabir Purkayastha, over allegations of foreign funding. Holding the action to be a “mala fide and arbitrary” exercise of power, Justice Neena Bansal Krishna said it amounted to an abuse of the legal process and posed a threat to free and independent journalism.

What were the allegations against NewsClick?

The proceedings stemmed from two cases registered in 2020 by the EOW of the Delhi Police and the ED. The EOW case originated from a letter dated June 26, 2020, written by Sobhan Singh, who was an informant and not an aggrieved party, to the Ministry of Information and Broadcasting, alleging that PPK NewsClick Studios Pvt. Ltd. had misappropriated funds and violated foreign direct investment (FDI) norms. The communication was subsequently forwarded by Vijay Kaushik, Under Secretary in the Ministry, following which the EOW registered an FIR.

The FIR alleged that NewsClick had received an investment of $1.5 million from Worldwide Media Holdings LLC, a Delaware-based entity in the United States, at an inflated share valuation. The investigating agency claimed that the premium at which the shares were issued was intended to circumvent the 26% cap on foreign investment in digital news media. However, the investment agreement had been signed in March 2018, and the funds received in April 2018, more than a year before the 26% cap was introduced through a government press note on September 18, 2019.

The allegation that NewsClick had manipulated its share valuation also formed the basis of the alleged violations under the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017 (FEMA). The regulations require that shares issued by an Indian entity to a foreign investor be valued in accordance with an internationally accepted pricing methodology and not be transferred below fair value.

The record also showed that, before receiving the investment, NewsClick had written to the Information and Broadcasting Ministry in December 2017 seeking clarification on whether online news portals were subject to the FDI restrictions applicable to print media. In January 2018, the Ministry responded that “online publications on website/web portal do not fall under the ambit of print media”.

During the proceedings, reference was made to a status report dated July 26, 2021, signed by Assistant Commissioner of Police Anil Kumar of the EOW and supplied to NewsClick’s counsel. The report incorporated a response from the Reserve Bank of India (RBI) stating that the foreign remittance had come through the automatic route and that no FEMA violation was disclosed.

However, on July 29, 2021, the state sought to distance itself from the report and requested permission from the court to file a fresh status report. When a revised report was eventually filed on October 4, 2021, the RBI’s observations were omitted. The EOW nevertheless maintained that NewsClick, despite being a loss-making entity, had received FDI at inflated valuations and alleged that the share valuation mechanism had been used to bypass regulatory restrictions. It further claimed that 45% of the foreign investment had been diverted.

Within a week of the FIR being registered, the ED initiated proceedings under the Prevention of Money Laundering Act (PMLA) by registering an Enforcement Case Information Report (ECIR), similar to an FIR, on the basis of the same allegations. The predicate offences cited in the FIR included criminal breach of trust, cheating and criminal conspiracy.

How did the UAPA case against NewsClick unfold?

Apart from the proceedings under FEMA and the PMLA, Mr. Purkayastha and NewsClick’s head of human resources, Amit Chakravarty, also faced prosecution under the Unlawful Activities (Prevention) Act (UAPA). In October 2023, the Special Cell of the Delhi Police arrested the duo following a report published by The New York Times alleging links between NewsClick’s funding and Chinese state-backed propaganda efforts. Mr. Chakravarty subsequently turned approver and was released from custody.

Mr. Purkayastha remained in Tihar Jail for nearly seven months before the Supreme Court, in May 2024, declared his arrest illegal and set aside the remand order. The court found that neither he nor his counsel had been furnished with the written grounds of arrest before he was remanded to custody.

A Bench comprising Justices B.R. Gavai and Sandeep Mehta held that communication of the grounds of arrest in writing by the investigating agency was “sacrosanct and cannot be breached under any situation”. The Bench observed that failure to furnish the grounds of arrest would violate the fundamental right guaranteed under Article 22(1) of the Constitution, which provides that no arrested person shall be detained without being informed of the grounds of arrest and shall not be denied the right to consult and be defended by a legal practitioner of their choice.

Accordingly, Mr. Purkayastha was thereafter released on the grounds of not being provided a “communication of the grounds of arrest in written”, thus vitiating the arrest and subsequent remand.

What were the court’s findings on the alleged FDI violations?

On the allegation of FDI violations, the court noted that the correspondence issued by the RBI approving the transaction between NewsClick and Worldwide Media Holdings LLC was sufficient to demonstrate that no violation had occurred. The court reasoned that the transaction had been cleared by the very regulator within whose domain the alleged offence fell. It also took note of the fact that no FDI cap on digital news media existed at the time the investment was made.

Justice Krishna also rejected the State’s allegation that over 45% of the foreign investment had been siphoned off through salary payments, consultancy fees and rent. Referring to the company’s financial records, the court noted that its expenditure exceeded its revenue during the relevant period.

“When a company is functioning, especially in the business of digital print media, such expenses are bound to occur. Even if it is accepted that there were overpayments and excessive expenditure incurred by the petitioner, it does not disclose any criminal offence. The allegation of siphoning is, therefore, not tenable,” the judge said.

Why did the court find that the offences of cheating and criminal breach of trust were not made out?

With regard to the offences of cheating under Section 415 of the Indian Penal Code (IPC) and criminal breach of trust under Section 406, the court pointed to the absence of any aggrieved party. It noted that Worldwide Media Holdings LLC, the entity that had invested funds in NewsClick, had never lodged any criminal complaint. The court further observed that the prosecution had failed to identify any person who could be said to have been deceived, cheated or otherwise suffered any grievance on account of the transaction.

The court also highlighted that Mr. Singh, on whose complaint the FIR was registered, had no direct involvement in the transaction. It held that a commercial investment made in exchange for shares could not, by itself, amount to an entrustment of property so as to attract the offence of criminal breach of trust.

What did the court say about the money laundering charge?

The ED’s money laundering case was primarily based on the allegation that Mr. Purkayastha and others had conspired to bring foreign funds into India through an investment in NewsClick. It is alleged that ₹9.59 crore (approximately $1.5 million) was routed into the country under the guise of an investment in digital media, thereby attracting the offence of criminal conspiracy under Section 120B of the IPC. According to the agency, Mr. Purkayastha had colluded with Jason Pfetcher of Worldwide Media Holdings LLC and American businessman Neville Roy Singham in facilitating the inflow of funds.

The court, however, rejected the contention and pointed out that a charge of conspiracy requires material indicating an agreement to commit an illegal act or to achieve a lawful objective through unlawful means. Apart from what it described as “bald assertions”, the court found no material to suggest the existence of any such agreement or unlawful design. It further noted that despite the ED carrying out extensive investigations for nearly a year and a half, during which the petitioners and several employees were repeatedly summoned, no incriminating material had been placed on record.

“Aside from bald assertions of there being a criminal conspiracy, there is not a whisper of any incriminating allegation which would even remotely suggest the commission of the offence punishable under Section 4 of the PMLA (punishment for money laundering),” the court observed.

Having found the allegation of criminal conspiracy untenable, the court went on to hold that the ED’s money laundering case could not survive once the underlying FIR was quashed. Relying on the Supreme Court’s decision in Vijay Madanlal Choudhary v. Union of India (2022), it observed that where the predicate offence is set aside, money laundering proceedings founded on the same set of allegations cannot be sustained against the accused. Consequently, the ECIR was also quashed.

explainer

THE GIST

The FIR alleged that NewsClick had received an investment of $1.5 million from Worldwide Media Holdings LLC, a Delaware-based entity in the United States, at an inflated share valuation.

The court noted that the correspondence issued by the RBI approving the transaction between NewsClick and Worldwide Media Holdings LLC was sufficient to demonstrate that no violation had occurred.

The court held that in the absence of any aggrieved party, charges of cheating and criminal breach of trust could not be made out.

Check this out: Why was the NewsClick case quashed?

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