Breaking: [Tool Kit Case] Nikita Jacob, Shantanu Muluk, Shubham Kar Chaudhuri Withdraw Plea For Anticipatory Bail As Prosecution Agrees To Give 7 Days Advance Notice In Case Arrest Is Necessary

ASJ Dharmender Rana disposed of the applications after the Applicants sought to withdraw the same on a condition that if the investigating agency finds their arrest is imminent and unavoidable, then 7 days advance notice be given; Whereby they can exercise their legal remedies.

As the APP conceded to this request, the applications were disposed as withdrawn.

During the hearing, the APP had expressed that the case is on an initial stage and there will be a need for custodial interrogation.

The Deputy Commissioner of Police also expressed the need for custodial interrogation on the ground that the accused made false statement during investigation and also deleted certain incriminating materials before their phones and other devices were seized.

"We are dependant on foreign companies for giving us information. Even though they deny they were not on zoom call, we will have to see. We will not like to have a situation where we are denied custodial interrogation at any stage," the DCP told the Court.

The Judge however insisted that the matter has to be disposed of today. ASJ Rana said, "You have to tell us right now, what are the incriminating material to tell us why the custody is sought. Give them the notice in case arrest becomes imminent, satisfy the court."

On being asked to take the call on the defence counsel's proposal for withdrawal, the APP said, "if the investigating agency finds arrest of accused is imminent and unavoidable then 7 days advance notice be given."

Arguments on behalf of Shantanu Muluk

"Expressing solidarity is not only a right but also a duty for expressing your feelings," Advocate Vrinda Grover appearing for Shantanu Muluk (a volunteer in the youth environmental collective— Extinction Rebellion organization).

She emphasized that the so-called toolkit that is the subject matter of the case was merely a google document, containing information as to what protests are taking place across the country. She insisted that this information is readily available all over the internet and does not make out a case against Muluk.

"I collate information available in public domain and made a map. Then I add a link for sample photos and videos of solidarity. I did not create any content," she argued on behalf of Muluk.

She insisted that if someone wishes to write to a Government representative, the alleged toolkit is a sample. "I cannot think of a more democratic form through which a citizen can express its disagreement. Pick up the phone and tell the representative," she remarked.

She pointed out that the impugned Tweets on farmers protest were merely driving attention towards a public issue. In fact, the Twitter handles that were tagged in the said tweets belong to the Prime Minister of India, the UN Human Rights, United Nations, UNCW.

"Who am I tagging and what am I saying in these tweets? I am saying that there are internet shutdowns in the country and this might hamper the protection of women.

They are saying we should have a speedy and peaceful resolution. Will it not be an appropriate thing to say? Even the CJI said it, newspapers are saying it, government is saying it. Tweeting on a public issue is not wrong.

These are the tweets they are saying are incriminating. I am saying, what is objectionable about these!" she vehemently argued.

Grover emphasized that in the impugned tweets, there is no question of inciting violence. "I am not even asking anybody to step out in the street, or to cause mobs, or to cause riots. I am only saying add your voice, let's get this issue resolved. Where is the objectionable comment here!" she said.

Grover relied on the Supreme Court's decision in Amish Devgan v. Union of India, to argued that it unequivocally held that making comments or raising slogans is not sedition.

She added that Muluk did not have any role in sharing the toolkit. "Sharing the toolkit per se, as held by your lordship, is not an offence. The entire toolkit does not have a call for any violence, whatsoever," she added.

Grover further informed the Bench that Muluk has been cooperating with the investigation agency in every manner and hence, he is not required to be kept in custody.

She submitted on behalf of Muluk,

"Except for 4 days being Saturday Sundays and a Tuesday, I was summoned every day mostly around 10 30 and 11 and left around midnight. For 18 days I have joined investigation. If there is any material they had to unearth, I am available for interrogation. They have interrogated me rigorously."

She added,

"I handed over my iphone with sim card, an iPad and a Dell laptop. During investigation they said they have interest in my mother's phone. I handed over it to the police for the purpose of investigation. They asked me for passwords of my social media accounts. I gave them on the first date itself without any hesitation. They asked me 115 questions, I gave them comprehensive answers in writing. My bank details were asked including my parents. I have disclosed all of them. My passport and other details are also been given to them."

Grover further informed the bench that Muluk was even confronted with the other co-accused Disha Ravi and Nikita Jacob. However, there is no contradiction that has emerged.

As a mark of Muluk's cooperation with the investigating authorities, she also referred to a case registered against Muluk in 2019 in connection to participation in the Extinction Rebellion.

She submitted that Non-bailable warrants were issued against Muluk in that case. However, the Bombay High Court granted him transit anticipatory bail and since then, Muluk continues to join the investigation.

With respect to editing of the Toolkit, Grover submitted that Muluk did not touch the toolkit after January 18. She submitted,

"It will be misleading and factually incorrect to say that I am the owner (of the toolkit). The access is to others to. They can change without my knowledge. That is the nature of the document

It's a verifiable fact that I have not written, edited or done anything to toolkit since 18th January. This is shown by the IP address. After this date I did not even touch the toolkit."

She added,

"I added the texts to the cheat sheet but did not add any links to the document. Where they talk about genocide watch, this link is not added by me. This vague averment made here that the cheatsheet had a link is baseless. As a matter of verifiable fact by electronic evidence, the link was not added by me.

In any case, genocide watch is an international organisation. I have not created it. All this has been confirmed in confrontation.

My role ends here of the toolkit. I didn't touch the document after 18th January ever again. I have no connection with PJF. How do we access the role today? I have not added anything about them. My focus was on farmers issue and farmer's protest.

After 18 January, no edits were attributed to the present applicant. This can be seen by the IP address. When edit is taking place, each person is free to edit in Extinction Rebellion."

So far as Muluk's connection with the organisations like Sikhs For Justice, Poetic Justice Foundation, etc. is concerned, Grover submitted,

"What is really my role in this case? There is an organisation called Sikhs For Justice which is a banned organization. I have no knowledge or communication with the said organization.

Another organization named by them is Poetic Justice Foundation. It's not a banned organization. I don't have any connection with it. The only time I had an interaction with it was over a zoom call.

Ask India Why campaign has been initiated by Poetic Justice Foundation, I am not denying it. But till then, nobody heard about the organisation in India. It's not a banned organization till date. It was mentioned that farmers protest issue will be discussed."

Grover claimed that Muluk, along with a colleague, joined the Zoom call with the PJF on behalf of XR foundation (where Muluk claims to be a volunteer) on receiving a communication through Instagram.

She added

"I joined the zoom call in which around 70 to 80 people were present. I know nobody except my colleague. I am just a listener in the call. In that call, there are no remarks made about Khalistan or any secessionist. I don't know who MO Dhaliwal is."

During the hearing, the Bench enquired as to the purpose of the Zoom call. Grover sought time to respond to this.

Further, with respect to connections with Climate 2025 organixation, Grover said,

"Climate 2025 is a registered private limited company in UK. If anybody does even a cursory Google search, the company has its own website which mentions the directors. This company does a 5-year change making mission.

Extinction Rebellion is not an NGO but in order to pass the money, there has to be a proper channel. Extinction Rebellion is one of the clients of Climate 2025. I am a private limited company providing a corporate support to Extinction Rebellion. There is no anti national activity taking place. I am showing this because one of the ways of flagging a red rag in this country is to show some kind of foreign funding.

I am a volunteer in the organization. I have repeatedly answered this during interrogation. We talk about role of people's assemblies and citizens groups on varied issues, farmers issue being one of them."

Arguments on behalf of Nikita Jacob

Senior Advocate Rebecca John argued on behalf of Advocate Nikita Jacob, also a co-accused in the matter.

She submitted that Extinction Rebellion is a peaceful organization and has a global standing.

She then submitted that Jacob participated in the above referred Zoom call with PFJ and also worked on the toolkit.

"I am not saying I edited one or two lines, but I say I worked on it. My argument is, so what?" John remarked.

She asked the Court,

"What have I done? If we look at this, my role is I attended a zoom call where I didn't know who was who. Assuming I did, because as a criminal lawyer, I assume the worst against myself.

Your honor may take it that I participated in the preparation of toolkit. Your honor may take it that I edited the toolkit.

Other than that, I did not take place in the protest. I do not know the other co accused (Shantanu Muluk). We never had a face to face interaction. We only met at the time of interrogation for the first time."

With respect to reference to Genocide Watch in the toolkit, John argued,

"Anybody, our children, my learned friend can see what genocide watch does. It collates information.

These kind of critiques about different countries, we don't have to believe this. It's an open website which can be accessed by anyone. Putting a hyperlink there, does not make it an issue."

She added that the toolkit cannot be viewed as a tool to incite violence.

"What does this twitter template do? Some standard people are retweeting and liking it. Is this going to affect the sole and functioning of the republic of India?" John asked rhetorically.

In conclusion, she submitted,

"My participation in zoom meeting is not an act of criminal conspiracy. My participation in preparation of toolkit, your honor might go to the extent of saying that even my hyperlinking, is not an act of sedition."

She quoted from the judgment of Shreya Singhal v. Union of India, "There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement.

Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. "

She argued,

"There are 2 stages, discussion and advocacy, both of which are not criminalized by the court. It's only incitement which is criminalized.

I am drawing an argument from this which is that we were on the stage of discussion and advocacy. There is not even an iota of evidence to show that there was incitement.

The mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all."

On being enquired about the difference between discussion, advocacy and incitement by the bench, John replied,

"Let us take it that these allegations exist. The act of making toolkit, the act of linking international websites, I ask myself, did it incite any violence? Did anyone who was arrested on 26th January say that they got incited by reading the toolkit?

I am saying, between the time, anyone of us working on the toolkit, what action of mine caused the violence on 26th? Even post that? There was a sea of women who sat on the farmers protests."

Arguments on behalf of Subham Kar Chaudhuri

Advocate Soutik Banerjee appearing for Subham Kar Chaudhuri argued that the Government's reply opposing the anticipatory bail plea is a cut paste of the allegations made against the other two accused persons.

He submitted,

"The State cannot cut paste the allegations. They have callously labelled the same allegations against me.

I was not the part of the zoom call. I was not ever in communication with MO Dhaliwal. There is no record of me even passively being part of the group with these people. I am not the the active member of Ex R. I am just the south Asia liason for it.

My work is just to coordinate because Ex R has a lot of chapters. I am not even required to be informed as to what one chapter does. That is my role in the entire Ex R network."

Banerjee further contended that Subham Jar did not even open or seen the toolkit. Further, the only role attributable to him of forwarding the link to certain people in Pakistan. However, there is no record of such communication.

Defending Subham's actions, Banerjee submitted,

"As a liason person who forwards messages to a lot of people regarding chapters, I have a broadcast list on my Whatsapp.

There is also a loudspeaker on the bottom of the message showing that it is a broadcasted message. So I am forwarding this link to every person, not just Pakistan. Merely forwarding a message to a person in Lahore, Pakistan and Islamabad does not make me accused of anything.

The people who have received it are young people and women in Pakistan. Mere communication from people of Pakistan is not a crime. Even our PM talks to their PM on his birthday."

Government's response

Opposing the anticipatory bail plea for Shantanu Muluk, APP Irfan Ahmed argued that as per the applicants, they are very noble persons. However, that does not permit them to do illegal things. "It is your case that you went to express solidarity but your hidden agenda is to provoke people against India," Ahmed remarked.

He pressed that that "attempts to bring dissatisfaction towards the government of India" will amount to Sedition under Section 124A of IPC.

He submitted, "I have the intention to kill someone, then it also has a lot of stages including preparation. Once I put the finger on trigger for killing a person, even if the person is not hit, then also it's an attempt.

State is a sovereign. You cannot criticise it. Sikhs of Justice is a Sikh dissent organization. You are saying something against the government."

Referring to the hashtags used in the impugned tweets, the APP argued, "This evergreen message is not stopped here. They say even if the laws are repealed, the message should be there. This creates doubts."

Unconvinced, the Court asked, "What if they are moved by Gandhian approach and want to keep the movement alive? What is wrong in it?"

At this juncture, APP submitted that the applicants were attracting people by making false claims that the Indian Government is killing and suppressing people.

"What is the intention of you to write this? When they have come to know that person's are not dead, they start making amendments. they have edited. What is the need of correcting? Why you created such thing that people were dead. you wanted to create a facade. we all have seen how tractor was being dragged.

You are a person who has done all this. Even if you have corrected, you have created data that 100s were injured. This gives your intention, to give something to the people they may believe. We are giving special emphasis to social media. You should be 100 times careful," he argued.

APP informed the Bench that when Muluk was asked as to whether any monetary support was received by him, he specifically denied saying "no, never". However, when he was confronted, it was discovered that he received 600 UK pounds.

"This money is coming from Jeddah. It is not directly coming from England but the headquarters of foreign exchange is from Jeddah," the APP said.

At this juncture, the Court expressed dissatisfaction at the State counsel's arguments. It said, "you leave so many gaps for me. You mentioned Jeddah, I was expecting you will be coming on further points. We need to be fair to both sides. Is there anything wrong for adopting same course of action against them also?"

ASJ Rana added, "you said the investigation is on a very initial stage. There is a situation that arrest might become imminent. At this stage, there are 2 options available with you. First is that you put sufficient material on record. On that basis either bail will be given or rejected.

If it is rejected, then the evidences you are looking for will not come because you say it is very initial stage. So why not you put material on record and show the arrest is imminent."

The APP responded

"If a person goes to police station with Anticipatory Bail then the outcome will be different. Court: if you have already taken a court, then the issue is over.

Why we want the custody is that he had provided his mobile but he kept deleting his iCloud. He changed it and therefore we could not take the documents."

The Court then said, "So how can you now take them? You will have to satisfy us. You cannot be granted custody to instil fear."

To this, the Deputy Commissioner of Police responded that Muluk has been deleting the data from his devices which one, shows the antecedents and two, is consuming time for the authorities to investigate the matter. He submitted,

"This investigation is being done by the Cyber crime unit of Delhi Police. Almost the entire activity of creating the document was done online. We have around 6-7 applications used, including Zoom, Google, Signal, Telegram etc.

It is important to highlight that the owner decides who can edit the document. It's the owner's responsibility to regulate the conduct of editors.

we have already asked twitter about the instances where false contents were posted. We could get a few of them and they are annexed. We also have Instagram and Facebook including mail services.

All are based abroad and it takes time to obtain information. In fact, the USP of Telegram etc is very restricted as far as sharing contents is concerned.

We rely on the device to get the information. In this case unfortunately the period provided was used by accused persons in deleting data.

He has accepted that also. Entire logs from July onwards from his devise were deleted. He deleted specific photos on the day he was in Delhi when violence happened. The location data is also deleted.

These were the data present in an encrypted form protected by passwords. We have asked the applications to get us the data but it takes time.

This is the antecedent we are talking about. Not only that, he was using apple device. That Ipad he was continuously using was clean without any data. Even the iCloud account was changed.

There will be some remnant of data after being delete also. But even that was changed. There is no account in the device. He has deleted data, taken all measures to remove the incriminating details of his conduct during his stay in Delhi."

Edited by Akshita Saxena