20 July 2022 9:15 AM GMT
The Supreme Court on Wednesday ordered the release of fact-checker Mohammed Zubair, co-founder of AltNews, on interim bail in all UP Police FIRs. A bench led by Justice DY Chandrachud observed that existence of power of arrest must be pursued sparingly by the Police. The Court has directed the Tihar jail authorities to ensure that he is released before 6 pm today, subject to furnishing...
The Supreme Court on Wednesday ordered the release of fact-checker Mohammed Zubair, co-founder of AltNews, on interim bail in all UP Police FIRs. A bench led by Justice DY Chandrachud observed that existence of power of arrest must be pursued sparingly by the Police.
The Court has directed the Tihar jail authorities to ensure that he is released before 6 pm today, subject to furnishing bail bonds.
The bench was of the view that there is "no justification" to keep Zubair in continued custody any further and subject him to diverse proceedings when the gravamen of allegations arises from the Tweets which forms part of investigation by Delhi Police, in which case he has already been granted bail. The bench observed,
"Essentially, the gravamen of the FIRs pertain to the tweets. Having regard to the fact that the petitioner has been subjected to comprehensive investigation by the Delhi police, we find no reason for his deprivation of personal liberty to persis."
The Supreme Court also refused to impose a bail condition that he should not tweet again.
"We can't say that he won't tweet again. It is like telling a lawyer that you should not argue. How can we tell a journalist that he will not write?...If there is any tweets against law, he will be answerable. How can be pass any anticipatory order that someone will not speak...", Justice Chandrachud told the Additional Advocate General of UP.
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. The order stated,
"We are of the view that the alternate prayer of the petitioner should be accepted. All the FIRs registered against the petitioners, including the 6 FIRs noted above, should be transferred for investigation by Delhi Police."
The direction to transfer all UP FIRs to Delhi Police Special Cell shall apply to future FIRs which may be registered in future on the basis of tweets. Zubair will be entitled to bail in all such future FIRs. The order stated, "FIR which may be registered against petitioner hereafter on the subject matter, in which event, the investigation of the FIR shall stand transferred to Delhi Police & he will be entitled to bail."
The Supreme Court has also made it clear that Zubair will be at liberty to seek quashing of the FIRs before the Delhi High Court.
Conditions for Bail
Zubair's bai is subject to subject to his filing a personal bond for Rs 20,000 in connection with 7 UP FIRs. The same have to be presented before the CMM, Patiala House and immediately after the submission of the same, the Superintendent of Tihar Jail has been directed to ensure that Zubair is released before 6:00 PM today.
What transpired in court today?
The court was considering writ petition filed by Zubair seeking to quash the FIRs registered against him by the UP Police. He had also prayed for clubbing the said FIR's in Delhi and had sought interim bail in all the 7 cases.
It noted that Zubair has been "embroiled" in a series of proceedings where he is either in judicial custody or where police remand application is pending.
Apart from the Delhi Police FIR, a series of FIRs have been registered against Zubair at Loni Border, Muzaffarnagar, Chandoli, Lakhimpur, Sitapur and Hathras districts(2 cases there0. All the FIRs broadly allege offences under same sections 153A, 295A, 505 IPC and 67 IT Act.
Advocate Vrinda Grover appearing for Zubair argued gravemen of all FIRs are the same tweets, whereas none of the tweets remotely used language which is improper or which amount to criminal offence. She added that this is a clear case of 'silencing' a fact checker by invoking criminal action under multiple FIRs. She also submitted that there is genuine apprehension of threat to Zaubair's life.
"In this age of digital age, the job of someone who is debunking false information may draw the ire of others. But the law cannot be weaponised against him…The dormant FIRs are activated the moment I secure bail in any case. Dormant FIR gets suddenly activated. That is why I say there is more than meets the eye. There is a scenario of encircling me."
UP AAG Garima Prashad on the other hand argued that Zubair is not a journalist.
"He calls himself a fact-checker. Under the guise of fact checking, he is promoting malicious and provocative content. And he gets paid for the tweets. More malicious the tweets, more payment he gets. He has admitted. He has got over Rs 2 crores. He is no journalist."
She submitted that instead of informing the police of illegal speech or hatred, Zubair has been taking advantage of speeches and videos which have the potential of creating a communal divide and he has been sharing them repeatedly. Whereas State has to prevent communal disharmony.
Cases against Zubair
Zubair was booked by the Delhi Police over a tweet made in 2018 on the renaming of a 'Honeymoon Hotel' after Hindu god Hanuman is an insult of their religion. He is on bail in the said FIR registered under Sections 153A, 295A, 201 and 120B of IPC and Section 35 of FCRA.
The subject matter of present case are multiple FIRs registered against him by the UP Police. Zubair has relied on Bhajan Lal case to argue that where criminal proceedings are mala fide or maliciously instituted to wreak vengeance, they can be quashed.
Grover submitted that they seek clubbing with Delhi FIR and interim bail in all the UP cases.
Zubair is on bail in connection with the Sitapur FIR, registered against him for a tweet in which he allegedly called 3 Hindu seers- Yati Narasinghanand Saraswati, Bajrang Muni, and Anand Swaroop as 'Hate mongers'.
Another FIR in Hathras was also registered in connection with the same tweet. He is remanded to judicial custody in that case.
With respect to Lakhimpur Kheri case, which was registered over a tweet made by him about a report of Sudarshan News TV, police remand application will be heard today.
In the said tweet, Zubair claimed that Sudarshan TV had superimposed the image of a mosque in Medina on the image of the Gaza strip to incorrectly show it was being destroyed.
It is alleged that he incited global Muslims through this tweet. He has been booked under Sections 153A (Promoting enmity between different groups on grounds of religion, etc.) and 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) IPC.
The Police has sought 14 days remand.
Arguments for Zubair
At the outset, Grover pointed out that no case of "incitement" is made out from the tweet mentioned in Lakhimpur Kheri FIR. She added the even the language in these tweets do not cross the threshold. In fact, he has tagged the police for taking legal action.
"He is pointing out as a fact checker that the picture of mosque used in a graphic of Sudarshan TV is wrong mosque. And I tag the police saying hope they will take action. Who is actually inciting? The graphic shared by Sudarshan TV channel. I as a fact checker place the actual image of Gaza bombing and image of real mosque. Prima facie, there is no offence made out. And FIRs are lodged by correspondents by this very channel (Sudarshan)."
She added that the offences alleged are not punishable by more than 3 years. Thus, 14 days police remand is disproportionate.
"What kind of police remand application is this? They will take me into custody and take me to wherever they want to investigate tweets from 2014 to take into custody of all devices. Is this not a statutory abuse of the power of investigation? There are direct threats against him. There is a bounty announced for his head. He is lodged in Tihar jail and he is taken back and forth.
Why I am saying this is an orchestrated investigation? 14 days remand is sought for omnibus investigation. 91 notices issued to AltNews asking for our entire records, accounts by three police stations. Scope of investigation is no longer the same."
Grover submitted that Zubair has been interrogated, search and seizure has been made, and a SIT has been constituted on July 10 for investigating 6 FIRs. Thus, he may be granted remedy under Article 32 to prevent the "instrumentalization of criminal law remedy" to harass him.
She relied on Jagisha Arora case where relief under Article 142 was granted to journalist Prashant Kanojia.
Arguments by UP Govt
The AAG argued that instead of informing the police of illegal speech or hatred, Zubair has been taking advantage of speeches and videos which have the potential of creating a communal divide and he has been sharing them repeatedly. Whereas State has to prevent communal disharmony.
With respect to the Sitapur FIR, she submitted that the objectionable speeches made by Bajrang Muni did not gain attention until Zubair, on April 7, made the speech viral through his Twitter handle. He did not tag the Sitapur police in this tweet.
Prashad submitted that the SIT, headed by a competent officer of IG rank, has been constituted looking at the gravity, so that local police stations do not callously apply the sections.
Section 67 IT Act was removed in Sitapur FIR. SIT realized the section won't apply, she pointed out.
"There is no conscious viciousness against the petitioner. The only intention is to prevent communal disharmony. In past two years, his following increased from 2.5 lakhs to five point some lakhs."
On July 18, Top Court had directed the Uttar Pradesh Police to not take any precipitative action against fact checker Mohammed Zubair in connection with the 5 FIRs registered against him in Lakhimpur Kheri, Muzaffarnagar, Ghaziabad and two at Hathras districts over his tweets till July 20.
During the hearing, Justice Chandrachud orally remarked "Contents of all FIRs seem to be similar. What seems to be happening is, as he gets bail in one case, he is remanded in another. This vicious cycle is continuing".
The Court had on July 8, 2022 granted Zubair interim bail in the Sitapur FIR and on July 13, a bench led by Justice DY Chandrachud extended the interim bail in the Sitapur case until further orders and posted his plea to quash the FIR for disposal in September. On July 15, the Patiala House Court had granted him regular bail in the Delhi Police FIR.
The petition has been drafted by Advocates Vrinda Grover, Soutik Banerjee, Devika Tulsiani and Mannat Tipnis and filed through AOR Aakarsh Kamra.
Case Title: Mohammed Zubair v. State of NCT of Delhi| WP (Crl) 21492/2022
Click Here To Read/Download Order