A Delhi Court on Saturday denied bail to Co-Founder of Alt News Mohammed Zubair. He was arrested recently by the Delhi Police for allegedly hurting religious sentiments and promoting enmity through his tweet made in 2018.
Chief Metropolitan Magistrate Snigdha Sarvaria of Patiala House Courts pronounced the order at around 7 PM. The Magistrate has remanded him to 14-day judicial custody.
Although the order was pronounced only at 7 PM, certain media outlets published reports at around 2.30 PM that the bail had been denied. Zubair's lawyer Advocate Soutik Banerjee raised an objection that the Delhi Police had leaked the order to the media before it was actually pronounced by the Court.
Later, the PTI reported that the Delhi Police DCP KPS Malhotra said that he informed media incorrectly about the bail order.
Zubair was produced today before the Patiala House Court on the expiry of his four days police custody.
The Delhi Police had sought 14 days' judicial custody. Special Public Prosecutor Atul Srivastava appearing for the agency also informed the Court that charges under Section 120B (criminal conspiracy) and 201 (causing disappearance of evidence of offence) of Indian Penal Code and Section 35 of Foreign Contribution (Regulation) Act have been added against Zubair. It is alleged that he received donations from Pakistan and Syria and thus, the matter requires further investigation.
Advocate Vrinda Grover denied the allegation, stating that the alleged funds were received by the Company and not by Zubair in his individual capacity. "It hasn't gone into my account. I am making a categorical statement."
She informed the Court that they have moved a bail application seeking Zubair's release. "I haven't even denied the tweet. What they needed to do is ask Twitter to..." she submitted. She also tendered in court an application stating that till date, no hash value or clone is generated by the cyber crime from the electronic devices and hard disc seized from Zubair. She contended that the agency has not shared the seized devices' hash value and thus there is "real likelihood" of tampering in order to add new Sections against him.
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Arguments on seizure of Zubair's electronic devices
Grover claimed that the mobile device that was used to post the tweet in question was snatched by somebody on bike back in 2021 and a complaint in that regard was lodged. "This document is on record within knowledge of special case," she alleged.
She also placed an application to place on record that till date no hash value or clone is generated by cyber crime from the electronic devices (new mobile and laptop) and hard disc seized from Zubair.
SPP Srivastava on the other hand contended that Zubair changed his sim when he was called to the office of Special Cell. "When it (phone) was analyzed, it was found that prior to that day, he has been using another sim. When he received notice, he took out the same and put it in new mobile. Please see how clever the person is. Investigation is at a nascent stage."
However, Grover responded, "Is it a crime to change my mobile phone or sim card? Is it a crime to reformat my phone? Or is it a crime to be clever. None of this is offence under Penal Code. If you don't like someone, that's okay but you can't cast aspersion on a person of being clever...Surely my intelligence cannot come in way of my freedom."
She further added that there was no need to seize Zubair's laptop since the tweet in question was posted from an android mobile. "This is a mala fide investigation."
The SPP on the other hand contended that the time when the phone was formatted is significant. "Time is more important. He has smartly deleted things. At what time he has deleted. Why you have deleted? There is no change in circumstances. Change is in favour of Prosecution. Deletion after FIR is more important. His bail deserves to be dismissed."
To this, Grover responded that there has to be "presumption of innocence" in Zubair's favour. She added, "He is not required. All evidence is in their custody and control, electronic and documentary in nature. My incarceration would be in violation of my liberty."
Arguments on impugned tweet
Grover submitted that the image in question is from a Hindi film "Kisi Se Na Kehna", which was made in 1983. She also claimed that several Twitter users had shared the image, however, only Zubair was "targeted".
"Indian Express published in March 2018 the very same image. This is the same image. What is this image? It's a scene from a Rishikesh Mukherjee film. It's a very sweet comedy. The film is available today in Amazon Prime and trending, courtesy Cypad. A completely innocent comic scene made by a renowned director. Till this was pulled up saying that this was so sensitive that public tranquility will be disturbed. These tweets are still on Twitter. No direction on Twitter to pull it down. For 40 years it has created no disturbance and an anonymous account with one follower...?"
The prosecution submitted that the action cannot be said to be time barred. "It was uploaded in 2018 but it's still here. And if it's there, everyone else is following. It is a continuing offence. It's not a case where it's deleted."
He further submitted that Zubair cannot take shelter by simply stating that the image is lifted from a movie scene. "There are many vulgar things shown in movies. Can we take videos of such things and upload? No! Especially when you're a young journalist. Responsibility has to be more. You should have deleted it but it's not done."
Provisions alleged in FIR not made out: Grover
Grover contended that Section 153A is not attracted in this case since it requires igniting enmity between "two groups", on the basis of religion, etc. "One group is also missing, leave aside two groups. My tweet is an image of a film. I haven't said a word. My tweet doesn't refer to any religion or religious group. It doesn't say anything inciteful for any God."
On the charge of Section 295A IPC, she referred to the case of Amish Devgan which discussed the distinctions between 'hate speech' and 'free speech'. "In a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and, in fact,repudiates the right to equality", the Supreme Court had held in this case.
So far as the additional charge under Section 201 IPC is concerned, she submitted that there is no tampering (of mobile phone) as it is no evidence. "Its a private property, i can do absolutely anything with my phone. You didn't ask me to bring my phone. Private property what a citizen does is of no bearing. This is no police state that we live in."
On invocation of provisions under FCRA, Grover submitted, "Your honour was mislead when told that accused has received it (foreign contributions). Alt News runs under a company under Section 8 of the Companies Act. They are saying I am a journalist, I cannot receive FCRA. This is to the company, not to me."
The SPP responded, "We have not concluded investigation. Why investigation or PC is required we have already demonstrated. We may drop certain offences or add some offences at final stage, so at this stage to argue that nothing is made out is not true."
The Judge had on Tuesday remanded Zubair to four days police custody after observing that he remained "non-cooperative" and recovery of the devices used for posting the tweet was to be made. Meanwhile, the Delhi High Court has issued notice on Zubair's plea challenging his custody.
Zubair has been arrested under Section 153A (Promoting enmity between different groups on grounds of religion, etc.) and Section 295 (Injuring or defiling place of worship with intent to insult the religion of any class) of the Indian Penal Code.
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.