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'Power Of Arrest Must Be Used Sparingly; No Justification To Keep Him In Continued Custody' : SC In Mohammed Zubair Case [Full Courtroom Exchange]

20 July 2022 1:32 PM GMT
Power Of Arrest Must Be Used Sparingly; No Justification To Keep Him In Continued Custody : SC In Mohammed Zubair Case [Full Courtroom Exchange]

The Supreme Court on Wednesday ordered the release of fact-checker Mohmmed Zubair on interim bail in all the FIRs registered by the UP Police over his tweets.

The Court observed that "there is no justification to keep him in continued custody any further and subject him to diverse proceedings when the gravamen of allegations arises from the tweets which form part of investigation by Delhi Police". Accordingly, the Court transferred all UP cases to Delhi and clubbed the FIRs with the Delhi Police FIR (in which he has been granted regular bail).

A bench comprising Justices DY Chandrachud, Surya Kant and AS Bopanna also observed in the order that the power of arrest must be exercised sparingly.

Here is the full court room exchange from the hearing :

Advocate Vrinda Grover, for Zubair: "There are 3 FIRs based on the same tweet. The tweets are the subject matter of all the FIRs, that is not disputed. All FIRs except one are under section 153A, 298, 295A, 505 IPC and 67 IT Act, barring the Hathras one which is of 10th June in which I am not named in the FIR at all.

Today, there is against me one FIR in Delhi, in which I have been granted regular bail by the court of the additional sessions Judge, Patiala house on 15th of July. That is based on a tweet. The tweet is dated 24 March 2018. During the course of investigation, section 35 of the FCRA, section 67 of the IT act and 201 IPC etc have been added. The scope of the investigation is expanded. There was a five day remand that I have suffered in that. A search and seizure was allowed. I was taken to my residence in Bangalore, a laptop was seized from my residence in Bangalore. Even though they say that the tweet is from an android phone, and I have documentary evidence of the phone being stolen, there was a search and seizure conducted and my laptop was seized. I have already challenged the legality of that, that is before the Delhi High Court. I have challenged the principle of the remand, the consequences I have already suffered. Thereafter a status report is filed-
See how the scope of the investigation has been enlarged in the FIR in which I was first arrested where a remand was given- 'For the purpose of recovery of the laptop and mobile phone used in committing this crime and for the purpose of interrogation of the accused to find out other tweets/posts and a larger conspiracy, if any, Mohammed Zubair was arrested in this case on 27 June 2022. He disclosed he is the co-founder of alt news and in order to gain popularity, he posted such content'. All of this, we have denied"
Ms. Grover: "They say it was disclosed that he had made seven other tweets of religious nature. In one of those cases, your lordships have been pleased to grant me interim bail in July. Let me pass to your lordships the tweets in question, it will help me make my case. One tweet is against one Bajrang Munni. That FIR was in Sitapur. The second is the subject matter also of FIR of 237 of 2022 at PS Kotwali Hathras. This is an FIR lodged on fourth of July after I have already been arrested in Delhi and sent to police custody on second of July. I have been put in judicial custody in Hathras and an application for remand to police custody for 14 days is pending and is to be heard tomorrow in Hathras. All of them are open ended FIRs"

Justice Chandrachud: "He was arrested in Delhi, he got bail. Sitapur FIR, bail was granted by our court. The Hathras FIR, he is in judicial custody and the police custody remand application will be heard tomorrow?"
Ms. Grover: "Yes. Also, my police remand application in connection with the case at PS Mohammadi Lakhimpur Kheri is to be heard today. In addition to this, there are 3 FIRs at Chandauli, Muzaffarnagar...In the tweet (which is the subject of the Lakhimpur Kheri case), there is no incitement whatsoever. He has put up a graphic that is posted by Sudarshan TV. I point out as a fact checker that this graphic is showing a mosque which does not exist over there, this is another mosque. And what is the language I use? There is no absolutely not even a hint of incitement to arouse any inflammatory passions. I say channel so and so has used a picture of Medina mosque superimposed with a picture from Gaza bombings. Is this trying to incite violence? And I tag the Noida police, UP police and DGP UP to take action! Please see who is actually inciting. Please see the graphic posted by Sudershan news channel. Please see what is written. As a fact checker, I have placed on record that this is the actual image of the Gaza bombing. I have also placed the image of the mosque. On this basis, an FIR is lodged against me. This is about silencing! Under 154 (Cr. P. C.), the police is asked to lodge an FIR when they get any information of the commission of a cognisable offence. Prima facie, there is no offence that is made out! At all the three police stations, all the FIRs have been lodged by District correspondents of this particular news channel against me. PS Chandauli FIR, I discovered only yesterday through media reports, I don't even know the FIRs against me. And these are the tweets I am making. Not a single tweet is there where even the language can be said to be improper, leave aside meet the threshold of 153A of promoting enmity, ill-will or inciting hatred. And I am tagging the police asking them to take action! Look at the nature of the FIR- the

FIR brazenly says he has tweeted like this, he has incited Muslims across the globe! I have not even tagged anybody except for the police, as I must as a citizen. What is happening today is that there is an entire network made to target (unclear)...the tweets may be different but the substantive nature of the allegation in the FIRs as regards the tweets and the gravamen of the FIRs is the same. That is why I am in article 32 before your lordships seeking a remedy that will protect me from the instrumentalisation by the criminal law machinery to harass and silence me"
Ms Grover: "They have set up an SIT. Please look at what they have said is the scope of the investigation- 'Derogatory remarks on the anchors of channels, inciting religious sentiments of Hindus and insulting gods and goddesses and posting provocative posts'! I am bewildered by the first one of making derogatory remarks on the anchors of channels! I have placed on record every tweet that they have said is the subject matter to show prima facie there is not even a single one which incites or promotes or provokes hatred or is derogatory in any manner. They said they will look into the FIRs at Sitapur, Ghaziabad, Lakhimpur Kheri, Muzaffarnagar, Hathras

When is the SIT formed? On 10th of July 2022, after your Lordships granted me protection in PS Sitapur case. On 12th of July, shortly after my protection is extended till September 2022, this SIT, the scope of which overlaps with the ongoing investigation in which I have been arrested, remanded, interrogated, search and seizure is made, thereafter the SIT comes into being while I am under investigation by the Delhi police special cell!...An application for 14 days police remand in a case where there is no offence punishable for more than three years! This particular remand application is moved in Hathras on 15th July, as soon as I get regular bail from the court of the additional sessions Judge, New Delhi! Please look at the subject matter that they are to investigate- That I have been posting objectionable remarks on Hindu gods and goddesses on Facebook and Twitter from 2014 from different devices i.e. mobile, laptop! That it has been admitted! I placed my retraction of the statement already in the court of CJM in Hathras. I have denied making any of the statements. This is the part that I am retracting...They mention some Apple MacBook that has to be recovered from the Alt news office in Ahmedabad. Look at how the scope is expanding. I am not denying either my tweets or that I am the director at Alt news. They say that in addition, he runs an organisation named alt news, that it is suspected it may be used for suspicious activities. They say I have received funding from sources abroad. This very finding is under scrutiny of the Delhi police. I have been granted bail under the FCRA act. The bail order actually makes a finding in my favour prima facie. The statement of the 'Razorpay' payment gateway itself is that I can receive only domestic payments. They say sustained police interrogation is necessary. They will take me into police custody for 14 days, take me wherever my residence and office is and look at what my tweets are from 2014 and take custody of my devices? What are the charges? All my devices have to be taken in police custody for what reason? Will this manner of invasive police interrogation and investigation withstand the scrutiny of this court? Is it not a statutory abuse of the power of investigation which your lordships have repeatedly said may not be permitted?"
Ms. Grover: "I want to show more material which is very, very disturbing that there continues to be a real threat to his life. There are more tweets of that nature which say let him be brought to UP courts. There is a bounty being announced on his head. There are direct threats. We have repeatedly requested the court to please have a VC hearing. He is presently lodged in Tihar jail and he is being taken back and forth. There is a real apprehension that there is a threat to his life.

I am saying this is an orchestrated investigation. 14 days' remand is being sought of me for some vague, omnibus investigation. Notices under 91 Cr. P. C. have already been served to ALT news asking for my accounts and funds and bank statements by three police stations. The scope of the investigation is no longer my contention, it is demonstrated by their own investigation. Look at PS Hathras Kotwali where a very omnibus kind of remand application was moved. Identical section 91 notices have been sent out...I have submitted in Delhi to the procedure established by law. But if I am going to be put through this, I will not be able to survive it. I may not even have the resources. It may be increasingly difficult to even have a council represent him in all those places. How am I supposed to run around in this manner and for what reason when prima facie there is no offence?"
Justice Chandrachud: "According to you, there is a considerable degree of overlap between the Delhi FIR and the other 6 FIRs. Your main prayer is also for the quashing of these FIRs, though not the Delhi FIR. In the alternative, your prayer is that these investigations be clubbed with the Delhi FIR. If this is done, then the SIT becomes redundant. And of course, you are applying for bail?"
Ms. Grover: "I am relying on Jagisha Arora's case which was also on tweets and social media where the journalist was placed under police remand. Your Lordships had said there that 'We are not inclined to sit back on technical grounds. In exercise of power under
Article 142 of the Constitution of India this Court can mould the reliefs to do complete justice' and had released the first prayer is for the quashing of this completely untenable FIR. I am relying on the illustrative guidelines laid down in the Bhajan Lal case. There is no case out made out against me. In Bhajanlal, your lordships said the power of quashing may be exercised where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. All these FIRs were dormant and were only activated only when I was on bail in some case! This is an act of encircling me! That is why I am saying there is more to this than what meets the eye! This is the age of digital media and social media, one debunking some propaganda may irk another, but the law cannot be weaponised against me!"

AAG Garima Prasgad, for the state of UP: "The accused is not a journalist. He calls himself a fact checker but he posts tweets to make them viral and spread venom. He has received 2 crores for his malicious tweets, for 12 lakhs from his monthly quota, he has to complete in 3-4 days. That is why we are saying he is not a journalist. That is what is being examined. The state is conscious of the fact that here is a person who is, instead of informing the police of any such act in which any such illegal speech, any such hatred which is there in the society that has to be informed to the police so that police action will take place, he has been taking advantage of the videos, tweets, speeches which have the ability to create communal divide and he has been doing it repeatedly. Why the state is here is not because some tweet had been made somewhere and an FIR is being registered. The tweet has been made and only thereafter the violence has happened and that is why the state has registered the FIR. Please see the Ghaziabad FIR, there was a video of an old man, who was 'Tabeez'-maker, being beaten by some people. What has been reported, your lordships may please see. I may not even read. That incident has happened on 5 June 2021, when the beating takes place. An FIR is lodged on 7 June 2021 against unknown persons. Those people were being investigated. There is no communal disharmony. Now comes the petitioner in this scenario. He takes advantage of this video, tweets it to his platform users, putting these sentences which will inInflame violence. On 14th June, he tweeted. On 15th June, the situation became very serious. The police called him, 41 A notice was given, statements were recorded, he admits that it was not a communal issue. After his tweeting, after the lakhs of followers read it and retweeted it to millions of other followers, this entire incident has blown up and the communal disharmony takes place in that district itself. That is where the FIR had to be registered under further sections. On 28th of June, he has given written apology that without checking the facts in fact I have gone ahead and given a different story to the video"

Justice Chandrachud: "Delhi police is investigating the matter. They have also invoked FCRA. The status report pertains to only not one tweet but a variety of tweets. That is the subject matter of investigation by the Delhi police. He has been granted bail by the sessions judge in Delhi arising out of that particular investigation. Where would the parlance of Justice really lie having regard to that? Having multiple investigations in Ghaziabad, Hathras, Muzaffarnagar, Chandauli? And Delhi has happened first in point of time?"

AAG: "This is not the first time. He is so over active in terms of his viciousness that he has not even spared a 10-year-old girl in making maligning statements against that girl and FIR is registered under the Pocso act against him. The issue here is not that there was one tweet or two tweets. Please look at Sitapur, there was this tweet given by Bajran Munni who has an Ashram in an area there and has a large following. On second of April, he made certain objectionable statements. It was about the raping of certain women of one community, that was the issue. After that, nobody comes forward, no complaint comes forward, and if at all some information could have come to the police, the police would have taken action. On seventh of April, this goes viral. The accused here makes it viral. He does not tag the Sitapur police, he makes it viral, retweeting, retweeting, retweeting. And how it inflamed within one day, within 2 to 3 days, the entire Sitapur area had to be placed under heavy police protection because there was major communal tension in that area...there were tweets of June 6 which read why are people not protesting. His tweets were circulated as pamphlets and soon after, there was heavy violence. Accused from these scenes have admitted that they were given the pamphlets with Zubair's tweets. While granting interim bail, the Supreme court also said that he will not post any such tweets. This court realised that his tweets were not earnest"

Ms. Prasad: "This is a society where different communities live. The people in this country should not promote hate crime. The SIT was formed by the state looking into the gravity as to that the police stations at the local level may not callously deal with the issue, that they should be aware of what provisions to apply or whether a provision applies or not so- section 67, IT Act had to be removed in one of the FIRs which was in Sitapur because the SIT realised this provision would not apply. It is being headed by a very competent police officer of IG rank. Our humble submission is that there is no conscious viciousness against the petitioner, the only intention of the government is to maintain peace and harmony in the state. It is in view of these repeated activities where the same model apparently has been followed. In the past one year, his following has increased from 2.5 lakhs to 5.7 lakhs. That is how the petitioner has been increasing his impact and area. This person realises the importance of his tweets. Our humble submission is that if at all they have any grievance against any investigation, the competent courts are there and your lordships may remand them to the competent courts. He was released with a 41A notice in the Loni, Ghaziabad case. Wherever custody is required, only in those cases will it be sought. I have instructions, and the state has made it very clear, that there is no viciousness against the petitioner"

The Supreme Court then proceeded to dictate its order, directing the release of fact-checker Mohammed Zubair, co-founder of AltNews, on interim bail in all UP Police FIRs. The Court has further ordered disbanding of the SIT formed by UP Police for investigation of FIRs against Zubair. It has clubbed of all the FIRs and said that the case should be handled by one investigating authority, i.e. Special Cell of Delhi Police.

In response to AAG Prashad's request to impose a bail condition that he should not tamper with the evidence and not tweet again (as observed by the Court earlier in granting interim bail), Justice Chandrachud remarked, "We cannot stop him from tweeting. How can we tell a journalist to not write? That is like telling a lawyer that they cannot argue. We cannot anticipatorily interdict him from exercising his right of free speech. For what he says, he will be answerable as per the law. As all of us are. But can we tell a citizen that you will not utter a word? Also, all evidence is in the public domain"

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