The case of, Mohammad Zubair vs State of Uttar Pradesh took a surprising turn in its due course of proceedings. Vacation Bench Justices Indira Banerjee and JK Maheshwari granted the accused (Mohammad Zubair- Alt News co-founder) an interim bail extending up to 5 days on the condition that he does not possess the right to tweet and leave the jurisdiction of the court of Judicial Magistrate First Class (JMFC) of Sitapur. Therefore, the case stands dismissed until next hearing.
"The order of the JMFC July 7, 2022, Sitapur be translated into English and filed in court along with order rejecting the prayer of bail. In the mean petitioner shall be granted interim order of bail for a period of 5 days on conditions to be imposed by JMFC," the Court directed.
The case was brought up when the Uttar Pradesh (UP) Police registered a first information report (FIR) against the accused in Sitapur for hurting religious sentiments that owe to a tweet published by him as referred to Mahant Bajrang Muni, Yati Narsinghanand and Swami Anand as 'hate mongers'. Hence, charged under Section 295 A of the Indian Penal Code which lays deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Along with Section 67 of the Information Technology Act, 2000 (IT Act) that provides-Publishing or transmitting obscene material in electronic form shall be punishable first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
Consequently, the accused pleaded before the Court for quashing the FIR registered in Sitapur, UP Police Station against his defamatory acts. However, the Sitapur Court rejected the aforementioned bail application as Judge Abhinav Srivastava observed that there was a possibility of the accused influencing witnesses, or repeating such offences. It was further, noted that the matter was serious in nature and non-bailable. Therefore, he was ordered with 14 days of judicial Custody.
Subsequently, the accused knocked the doors of the Allahabad HC to quash the case but to his misfortune the same application was turned down. Which led to the present appeal in the SC.
The Apex Court proceeding began on Friday (8th July, 2022). The prosecution, viz., The state of Uttar Pradesh was represented by Solicitor General (SG) Tushar Mehta and S.V Raju (Additional Solicitor General) While, Colin Gonslaves represent the accused (Mohammad Zubair). The bench raised a significant objection in the proceeding, that is, the application for bail already stood rejected by the lower court but the same was not disclosed before the SC. As Tushar Mehta stated:
"FIR was on June 1, quashing plea was rejected on June 10 and yesterday Sitapur court granted 14 days custody. This was not revealed yesterday and affidavit was filed yesterday. This is clear purposeful suppression. Such a conduct should not be encouraged,"
To which senior counsel representing the Accused Colin Gonsalves, responded by stating the location of the aforementioned crucial fact in their application that was, Paragraph 3 speaks of judicial custody.
Nevertheless, the SG observed that the rejection of bail by the Sitapur Court was not mentioned anywhere in the petitioners application. But Gonsalves contended that the rejection has been stated by virtue of challenging the Allahabad HC order. Further, he argued that the present proceeding should be shut down since the case owed its basis to a mere tweet, which has been accepted by the accused as his and questions pertaining to police or judicial custody stood irrelevant. As Gonsalves said: "No criminal case can be made out against him. The foundation of this case is a tweet. I seek a quashing of proceedings. Questions of police or judicial custody are irrelevant now, there is no case made out and the proceedings need to be quashed. I had admitted this is my tweet. Is this a criminal offence,"
Justice Banerjee observed that for a rejection of bail application there exists a different remedy. However, Gonsalves maintained that though the tweet has been published by the petitioner, it does not constitute as an alleged offence. This was elucidated by him as Gonsalves said: "they say it was about insulting religion. Order says there is a prima facie case. I have admitted to this tweet. There is no investigation needed in this. Please see page 28 of our petition,"
The crux of the hearing was bought by him when he submitted the innocence of the accused as an attempt to highlight the hate speeches delivered by certain people, who were subsequently charged under appropriate legal provisions. While, those set of people have been granted bail, the accused has been arrested for the same. "We only say till hate mongers like this are there now then who else do we need. All the others released on bail but I, a secular tweeter, was arrested. When I say hate monger, I am not wrong police has prosecuted them under 295A IPC,"
"What investigation are you doing to move me around, custody, seize my phone. I have admitted to my tweet already. Please see the part on the hate mongers. The people have been released on bail. Just see Milord what this country has come to. The person who exposes it is in jail and the person continuing is on bail. These hate mongers made remarks on constitution, judges and what not. This is what I did. I exposed this kind of venomous language against judges, constitution etc. I am in jail for this," Gonsalves said.
Following which, the bench garnered the attention of the court to present matter that is, the rejection of the bail and observed that the counsel must maintain an appropriate plea.
Further, the senior counsel (Gonsalves) highlighted the words of Attorney General KK Venugopal regarding observations against the constitutional provisions and judges as he stated: "Please see what AG KK Venugopal said on this video on a request to initiate contempt plea. He said that those who believe in the institution will die a death by seeing all this. Zubair exposed it and he is now in jail. I admit it to what I said."
Gonsalves argued that the action resorted by the Accused will not attract an offence under Section 295A IPC and Section 67 of IT Act.
"Please see Section 295A IPC. How is it applicable to me? I was in fact defending this. Now please see Section 67 of IT Act. Even that is not applicable (since) it's against obscene material," he submitted.
With regards to the Allahabad High Court hearing, Gonsalves claimed that the HC overlooked the fact that the accused has already admitted to the publication of the tweet. Gonsalves stated:
"High Court order finding says that the matter was at premature stage and evidence had to be gathered and then court on basis of this can decide one way or other. But here I had admitted to the FIR. This is a point missed by High Court. The High Court says there is prima facie case for offences. How is this an offence under Section 67 of IT Act or 295A of IPC. Where is the offence? If there is no offence then why he is in custody. That's what Bhajan Lal judgment is all about. Where is obscenity or religion,"
To which Solicitor General (SG), Tushar Mehta argued that individuals such as Mr. Zubair (The accused) are a part of syndicate which publish tweet in order to destabilise the order of society.
"Let me point out facts which are suppressed by fact checker. He has been arrested by Delhi police and Delhi court refused bail as there is some money angle since money has been received from some foreign countries. This info was suppressed. High Court did not grant any interim relief. He is in jail thus," the SG, Tushar Mehta submitted on behalf of Prosecution.
Further, it was made clear that Section 67 of the IT Act has already be dropped by the UP Police. He also pointed out that the fact that his bail was rejected has not been mentioned. As the SG stated: "UP court remanding him to custody has been suppressed,". Along with this, he argued- "There are two orders. Delhi court refused bail and here in UP too bail was rejected and remand was granted. All these suppressions and saying Section 67 is not made out. We have only charged Section 153A. Now he suppresses all of this and claims to be fact checker! There is something more than what meets the eye,"
To which, the Bench that is, Justice Banerjee responded by: "Perhaps it is not bail rejection but only remand," Which implied the case henceforth, primarily revolved around the judicial remand that was ordered for and not the rejection of the bail.
The speeches by Yati Narsinghnanad were also bought up in the case, as SG admitted to their arrest with an undisputed intention. "Speeches by Yati Narsinghnanad etc were hate speeches and they were arrested and they were in jail. I am not disputing consent by AG Venugopal. He was right in that," . It was also submitted that "His (The accused) overall conduct is being criminally investigated. It is not just this one tweet. He is a habitual offender,".
However, Gonsalves interfered by stating the relevance of Section 153A. As he said: "For Section 153A, I have to promote the enmity between religions. If i tell the police about such speeches then it is not promoting enmity but promoting secularism. Sorry solicitor This section does not apply to me,"
Further, the SG was asked by the Bench to elucidate on the offence imposed under Section 295 A of IPC. To which, Mr. S V Raju (Additional Solicitor General) representing the Investigating Officer responded by stating: "I am for the investigating officer. Please see Section 67 has been dropped. I will show how 295A has been made out. He has not written to police, he is tweeting it so that everyone sees it and then violence is incited," And Mahant Bajrang is a respected religious leader in Sitapur and if someone calls him a hate monger, then it invites violence,
The relevance of Section 295 of IPC was explained by him:
"There is no scope of intention here under Section 482 Petition. We have to look at his devices and that is why we are going to Bangalore and remand was granted. Please see Section 295. Whether intention there or not it is a scope of investigation. You call a spiritual leader a hate monger and you outrage religious feelings,". The ASG (Additional Solicitor General) also remarked that if the intention of the accuse was to promote harmony, then he should have sent a letter to the UP Police instead of tweeting about the offensive video.
"There is an attempt to promote disharmony and Ill will among religious groups. If you are such a nice person then you should not have tweeted and sent a letter to UP police. That fact that he has tweeted has created the offence," ASG contented.
The consequence for granting the Accused with bail was bought up in the hearing as ASG submitted that if the Honble court allows the bail application, then the accused may destroy all evidence existing against him in Bangalore. Further, such petitions for quashing the proceeding is not mentioned in the vacations list.
Justice Banerjee upon hearing this, stated: "he says there is deprivation of liberty. In such a case you cannot say that there is no urgency,"
The SG responded to this by, maintaining the fact of non-disclosure on part of the accused regarding crucial elements of the case and the sudden urgency was created by virtue of death threats etc.
"Please see the application. Delhi court has given police custody remand, rejected bail, nothing has been mentioned. This affidavit was filed yesterday and he does not mention that he was taken on transit remand order from Delhi to UP. He has not mentioned any of these facts. These are deliberate and wilful suppression. You cannot play with system like this. It is too early a stage for interference when HC says there is a prima facie case," the SG argued.
"As SG says do you have the order on bail plea," the bench questioned Gonsalves.
"We have not received the bail copy," said Gonsalves.
"Then say that bail rejected and order not received," the SG submitted.
Gonsalves contented, in this era of modernisation, all complaints are not always filed by sending letters.
"Nowadays everything is not about letters. The seers had commented on religious leaders saying Muslim women should be kidnapped and raped. Sitapur police replied even when it was 5 days had passed and said probe was on. Bajrang Muni Das had said that Muslim women should be raped if Hindu women are teased by Muslim men. NCW had taken cognisance as well," Gonsalves submitted.
"This is Bajrang Muni, what about others? the bench questioned.
"Petitioner has deleted many tweets. This is the modus operandi," the SG claimed.
The judges after a deliberate discuss amongst themselves, agreed upon the grant of interim bail for the accused.
"Let the matter be posted before a regular bench. We will grant protection for few days on condition that you will not leave jurisdiction of this court and you will not put up more tweets. We will grant you interim bail for few days," the bench held.
Further, the bench extended the duration of interim bail up to 5 days.
Nevertheless, of the abovementioned proceeding, Zubair is in the process of another case registered by Delhi Police in 2018 regarding promotion of enmity among the diverse religious groups. The said case was also founded upon the publication of his tweet. As the tweet contained a screenshot from a movie from the 1980s - Kissi se na kehna. A Twitter handle named Hanuman Bhakt flagged the same to the Delhi Police accusing Zubair of possessing the intention to deliberately insult the Hindu sentiments. As a result, Zubair was put under judicial custody. He was subsequently remanded to UP Police custody for the FIR filed against him on 7th July.
