Voice Of Dissent Necessary For Healthy Democracy, Mere Criticism Of Political Parties No Ground To Invoke S.153A & 295A IPC: Delhi Court On Zubair's Bail

"The voice of dissent is necessary for healthy democracy. Therefore, merely for the criticism of any political parties it is not justified to invoke section 153A and 295A of Indian Penal Code," a Delhi Court observed today while granting bail to Co-Founder of Alt News Mohammed Zubair.

The development ensued in an FIR registered by Delhi Police against Zubair recently for allegedly hurting religious sentiments and promoting enmity through his tweet made in 2018.

The observations were made in the context of the allegation that Zubair had tweeted image alongwith two words "Before 2014" and "After 2014".

The SPP had argued that the word "Before 2014" and "After 2014" pointed towards the ruling political party to show the state of affairs in a prejudicial manner.

Additional Sessions Judge Devender Kumar Jangala of Patiala House Courts observed,

"In Indian democracy, parties are open for their criticism. The political parties are not shying away from public to face the criticism of its policies."

The Court was also of the view that the police has failed to establish the identity of said twitter user who felt offended by the tweet of the accused. Further, from 2018 till date, no other complaint was received that the tweet was offensive. 

As per Delhi Police, the case was registered after a complaint was received from an anonymous 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 was an insult of their religion.

"The statement of this aggrieved person/witness under Section 161 Cr.PC is not yet recorded. The police has fails to record the statement under Section 161 CrPC of any other person who has felt offended by the tweet of the accused," the Court observed.

It added "The investigation to the offence of Indian Penal Code are governed by the principle laid down in Criminal Procedure Code, 1973. Police authorities are bound to proceed in the investigation as per provisions of CrPC"

Further observing that Democracy is a government by the people via open discussion, the Court added that democracy can neither work nor prosper unless people go to share their views.

"A free exchange of ideas, dissemination of information without restrains, dissemination of knowledge, airing of differing view points, debating and forming one's own views and expressing them, are the basic indicator of a free society. This freedom alone makes it possible for people to formulate their own views and opinions on a proper basis and to exercise their social, economic and political rights in a free society in an informed manner," the Court observed.

The Court further added that the Hindu religion is one of the oldest religion and most tolerant and that followers of the Hindu religion are also tolerant.

"Hindu religion is so tolerant that followers proudly names institution/organization/facilities in the name of their Holy God or Goddess. A large number of Hindus proudly name their children in the name of their Holy God and Goddess. The website of Ministry of Corporate Affairs, Government of India reveals that number of companies are incorporated in the name of Holy Hindu God or Goddess," the Court said.

It added "Therefore naming of an Institute, Facility or Organization or child in the name of Hindu Deity on the face of it, is not violative of Section 153A and 295A IPC unless the same is done with malice/guilty intention. The alleged act would come into the category of offence only when it is done with a guilty intention."

On the aspect that Zubair had posted the image of the scene of a movie "Kisi Se ha kehna" released in the year 1983, the Court observed thus:

"This movies was certified by the Central Board of Film Certification, which is a statutory body of the Government of India and is available for public view since then. No complaint is stated to have been filed till today that the said scene at movie has hurt the feelings of particular community of society."

The Court said that all the evidence were documentary in nature and that Zubair had already been taken in police custody for five days and is now lodged in judicial custody. Therefore, the Court was of the view that no further interrogation was required.

"Recovery has already been effected, therefore, no useful purpose is going to be served by keeping the applicant/accused behind the bars," the Court said.

Zubair was arrested on June 27 and was in custody since then. He had moved the Sessions Court after he was denied bail by Chief Metropolitan Magistrate Snigdha Sarvaria on July 2.

He was 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.

Later, sec. 295A along with sec. 201 and 120B of Indian Penal Code and sec. 35 of Foreign Contribution (Regulation) Act, 2010 was invoked against Zubair.

On the invocation of sec. 35 of the FCRA against Zubair, the Court observed that Zubair had placed on record that on its website (Alt News) it has been specifically mentioned that only Indian citizens with Indian Bank accounts should contribute.

"It is stated that the accused has taken all the safeguard to prevent the receipt of any foreign contribution The material placed on record by the accused prima facie shows due diligence taken by him as per Section 39 of FCRA," the Court observed.

Zubair was represented by Advocates Vrinda Grover, Soutik Banerjee, Mannat Tipnis and Devika Tulsiani.