High Court Issues Notice To Delhi Police On Mohammed Zubair's Plea Challenging Custody
The Delhi High Court on Friday issued notice on the plea filed by Alt News Co-Founder Mohammed Zubair challenging his four days police custody remand granted by a Trial Court here. He was arrested earlier this week by the Delhi Police for allegedly hurting religious sentiments and promoting enmity over a tweet made in 2018.
Justice Sanjeev Narula observed that the remand order was for a period of four days, ending tomorrow, and that he will be produced before the concerned court on July 2. During the hearing, the Judge orally remarked that the matter has a very limited "shelf life" since the remand will end tomorrow.
"I don't know if they are seeking for extension but...accused may be released, may be sent to Judicial Custody. Why don't you urge these points before Trial Court?... If talking about legality, I'll have to issue notice, serve the other side."
The Court has given time for filing the Counter affidavit within two weeks. Rejoinder, if any, is to be filed within one week. The matter will be taken up on July 27.
Meanwhile, the Court has made it clear that the proceedings before the Magistrate would be without any prejudice to the contentions raised by the parties and pendency of the matter before the High Court.
Advocate Vrinda Grover, appearing for Zubair, argued that the question in this case is not the period of remand per se but whether the nature of the case is of such which would warrant a remand in the first place. She argued that Zubair was arrested in breach of the Arnesh Kumar guidelines issued by the Supreme Court and that it's an attempt to breach his journalistic freedom by confiscating his mobile phone and laptop.
Solicitor General Tushar Mehta, appearing for the Delhi Police, relied upon decisions of Apex Court to state that the order in question is a interlocutory order and it's only in exceptional case that the Court can exercise its power. He submitted that the matter is still under investigation and assured that the agency is acting in a non-partisan manner. He added that even if the Court concludes that remand order is wrong, the consequence would be that Zubair will be sent in Judicial Custody. "Can the High Court in extraordinary jurisdiction examine something which has to be examined tomorrow by Magistrate having competent jurisdiction?" he asked.
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Zubair's journalistic freedom: Grover
Grover opposed the authority's persistent demand to seize Zubair's laptop and mobile.
Significantly, the trial judge had granted remand, observing that Zubair had remained "non-cooperative" and recovery of the devices used for posting the tweet was yet to be made from his residence in Bangalore.
Referring to these findings, Grover submitted,
"If they want my phone of 2018, was any notice even under 41A, did you ask me to bring it from Bangalore? No section 91 notice issued. 41A notice issued and within half an hour arrest is effected. There is a mockery of Arnesh Kumar guidelines, and if the Court doesn't stop this, nobody is safe in this Country."
She added that seizure of electronic devices like mobile phones and laptops in arrest for trivila matters has become a "pattern". Reliance was also placed on the Supreme Court's remarks on protection of journalist's sources in the Pegasus case.
"Remand order isn't only mechanical but it's allowing them to invade into my rights. It's placing a dagger into my privacy… Remand has endorsed whatever they have asked without considering what this is doing is to change structure of investigation and to facilitate a phishing and roving enquiry."
She claimed that several Twitter users had shared the image, however, only Zubair was "targeted" on the basis of his profession (journalism) and religious community.
Grover further argued that the Solicitor General appearing in a matter where the offence alleged attracts maximum punishment of two years, reflects upon the whole "story".
"The tweet is dated March 2018. It's barred by limitation. No court can take cognizance of this case. There is a bar under CrPC. What is the purpose of spending public resources in this including a flight tour?" she submitted.
Irregularities with respect to FIR: Grover
Grover claimed that Zubair was called for questioning in a 2020 FIR against him, however, he was arrested in a different FIR.
"I arrive at 2PM. It is a matter of record. I wasn't asked even a single question. This is how i was lured. Thereafter, at around 5:30 PM, I am served a notice in this FIR for the first time. Why wasn't it sent along in other matter? I am there for interrogation and another notice is slipped in. Within half an hour I am arrested. What is this case about?"
She also informed the Court that the charges in the FIR were altered by the police. She claimed that initially Zubair was booked under Section 295 IPC, which penalizes Injuring or defiling place of worship with intent to insult the religion of any class.
However, since no place or worship was destroyed, "they had to quickly change the provision itself (to 295A IPC)," she submitted.
Police not acting in a partisan manner: Solicitor General
The Solicitor General submitted that the FIR is only initiation of proceedings and the investigating authority may receive several other documents or material or evidence which may show that no offence or very serious offence is made out which might not be in FIR.
"Police isn't acting in a partisan manner. Earlier FIR, police has decided no offence is made out against him. He was called to ensure that appropriate report is filed before Court in that case."
On Tuesday, Zubair was produced before Chief Metropolitan Magistrate Snigdha Sarvaria of the Patiala House Court who sent him to four days police custody, observing that he had remained "non-cooperative" and recovery of the devices used for posting the tweet was yet to be made.
Zubair has been arrested under Section 153 (giving provocation with intent to cause riot) and Section 295 (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code. The Police had sought 5 days' remand.
As per Delhi Police, the case has been registered after a complaint was received from a twitter handle, wherein it was alleged that Zubair had tweeted a "questionable image with a purpose to deliberately insult the god of a particular religion."
According to the FIR, Zubair's tweet from 2018 on the renaming of a 'Honeymoon Hotel' after Hindu god Hanuman is an insult of their religion.
The FIR alleged that the words and the picture used by Zubair against a particular religious community were highly provocative and more than sufficient to incite feeling of hatred amongst people which can be detrimental for maintenance of public tranquillity in the society.
On the other hand, Zubair claimed that he was called for questioning in a 2020 FIR against him, however, he was arrested in a different FIR. The 2020 case concerns a plea moved by Zubair seeking the quashing of the FIR lodged against him on a complaint by a twitter user, Jagdish Singh.
The case pertains to a tweet posted by Zubair, sharing the profile picture of Singh which had him standing with his minor granddaughter, and asking -after blurring the face of the minor girl - if it was appropriate for Singh to use derogatory language in replies while using a profile picture figuring his granddaughter.
It may be noted that Zubair was granted interim protection from arrest vide order dated September 9, 2020 by a single judge bench of Justice Yogesh Khanna which had also directed the Delhi Government and the Deputy Commissioner of Police, Cyber Cell to file a status report on the investigation carried out in this case. The said protection is continuing.