Supreme Court Grants 5 Days Interim Bail To Mohammed Zubair In UP Police FIR; Restrains Him From Posting Further Tweets

Courtroom Exchange

Preliminary Objections

Zubair has challenged the Allahabad High Court's order refusing to quash the FIR against him.

At the outset, the Solicitor General raised a preliminary objection to the plea, stating that despite Zubair's plea for bail being rejected yesterday a local court in the Sitapur district of Uttar Pradesh, this fact was suppressed in the affidavit filed by him yesterday.

"This is a conduct which cannot be condoned. He is in police custody remand by a judicial order which is not pointed out to this Court. Affidavit was filed yesterday. This is clear suppression. Such a conduct unacceptable...He is seeking relief without telling your lordships that bail was rejected by a speaking order," the SG said.

Hearing this, Justice Banerjee told Gonsalves that such facts should have been explained in their affidavit.

Gonsalves responded that firstly, the order of local court rejecting bail was uploaded late in the night and secondly, they had approached the Supreme Court against the High Court's order in a quashing plea.

Justice Banerjee told Gonsalves that there is a different remedy against the rejection of bail. "That remedy has to be availed."

"That will do. Here I am against refusal to quash the FIR. Kindly see the tweet, the fountain of the allegation. Is it a criminal offence at all?" Gonsalves responded.

Offences alleged not made out: Gonsalves

Zubair is booked under Section 295-A of IPC which penalizes deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs and under Section 67 of the IT Act which stipulates punishment for publishing or transmitting obscene material in electronic form.

The High Court has refused to quash the case, stating that a perusal of record makes out prima facie offence.

Assailing this, Gonsalves submitted,

"How is this correct? How is that tweet offence under 295A or 67 IT Act. It is neither obscene nor insulting religion...My case is, even if I accept all allegations, no criminal offence is made out against me. So I seek quashing of the proceeding. Whether police custody or judicial custody, it is irrelevant now. Whether there is any case, even if I accept all the allegations...I have not spoken against any religion. Where is the crime against religion?" 

He continued, "First you have to see if a criminal offence is made out. That is what Bhajan Lal decision says. Where I have spoken against religion? Where have I said something obscene? And if I am right, I can't be taken in custody."

He added, "The persons who made hate speech, they have been released on bail. And the person who exposed them, he is in jail. What this country has become?...If I am performing the role of pointing out hate speech and reporting to police, it is not promoting enmity between religions. I am promoting secularism in fact. 153A does not apply at all. I am telling them to stop promoting enmity, stop hate speech."

The Solicitor General responded that this is not about one tweet by Zubair but whether he is part of a syndicate which is regularly posting such tweets with the intention to destabilize the country.

"One isolated tweet is not the offence, his overall conduct is being criminally investigated. He (Zubair) is a habitual offender. There are 6 cases registered against him."

He added that Zubair is also in receipt of donations from countries inimical to India (Pakistan, Syria) and the same is under investigation.

ASG SV Raju, appearing for the IO, sought to demonstrate how offences under Section 295A and 153A are made out. He argued that calling a religious leader a "hate monger" has potential to outrage religious feelings of a particular community and incite violence.

"Bajrang Muni is a respected mahant( religious leader) in Sitapur with large following. When you call a religious leader hate-monger, it raises problems. My learned friend says he has written to the police. That is wrong. He is tweeting it to the larger world. You have outraged the religious feelings of large number of followers of Bajrangi Baba. Whether it is deliberate or not, is a matter for trial. Prima facie offence is made out.

You are attempting to promote on grounds of religion disharmony or ill-will between different kinds of people. Calling a religious leader a hate-monger! If you were such a nice person, you could have sent a letter to police. Why did you tweet?"

So far as offence under the IT Act is concerned, Gonsalves argued,

"It has nothing to do with this case. And they make such a clamour that they have to take this phone, that phone...They have given police custody saying my phone has to be seized. But I admit my tweet. Why do they need to investigate my phone?"

As regards Bajrang Muni, Gonsalves submitted that he had given a speech in the presence of police officers where he said that Muslim women should be kidnapped and raped. The National Commission for Women has taken cognizance of that speech. Gonsalves added that Zubair reported the video of the speech of Bajrang Muni and tagged the Sitapur police in the tweet. Sitapur police replied to the tweet saying that the matter was under investigation.

Zubair fears threat to life: Gonsalves

Gonsalves also argued that the statements made by 'Dharam Sansad' leader Yati Narsinghanand were contemptuous in nature and lowered the authority of the Court, and therefore the Attorney General for India KK Venugopal has granted consent to initiate contempt proceedings against him.

"This is Yati Narsinghanand. What shocking statements he has given. And I am the person who is reporting...Am I slandering them? Are they not hatemongers? Am I wrong in calling them hatemongers?...I who capture these hate speeches have been sent to jail. Whatever I said, I admit. Where is the case against me?" he said.

The SG responded,

"Yati Narsinghananda was arrested. I am not here to defend that actions. Nobody is protecting him. I am here on whether his (Zubair's) tweet created law and order situation...After this tweet, there was a law and order situation."

He pointed out that two courts, a local court in Delhi and another local court in UP have refused him bail. "Two orders of different courts rejecting bail, and granting police custody and judicial custody. These are suppressed. SLP is not a regular appeal. It is a discretionary relief. So conduct of petitioner is relevant."

Gonsalves further claimed that Zubair, who is spearheading a fact checking news website, faces serious threat to his life.

"My life is in danger. There are many people advising to kill me. Advising the police to torture me. That is why I am here...There is a statement "directly shoot him". One lakh rs reward has been announced. These are the people who should be in jail."

The SG responded,

"You are under police protection. Where is the question of somebody killing him?...Suddenly an artificial urgency is created to defeat the orders passed by courts."

ASG Raju argued that valuable evidence with respect to the case is lying in Bangalore and if proceedings are stayed, that evidence can be destroyed. "It is with that ulterior motive that this application has been moved. Normally in vacation quashing petitions are not filed."

Justice Banerjee remarked, "In a matter of deprivation of personal liberty, you can't say there is no urgency."

The SG responded,

"Any order passed by this court will interdict 4 judicial orders passed by two courts which have not been challenged...He is under remand under a judicial order. It has not been challenged. (Allahabad) HC says on June 10 says there is prima facie case and is too premature to quash. Investigation has taken place. All these suppressions, and merely argument that 67 is not made out. Even police has found that and it is dropped. And what is added is 153A and this was argued before Court. This is not revealed. And he claims he is a "fact checker". There is something more than what meets the eye in this case."

The ASG added, "Prima facie case is made out under 295A and 153A (IPC). Bail has been rejected which has not been challenged. Police custody order is live. He has been taken to Bangalore in the midst of investigation. Not a fit case for entertaining this application at the midst."

Live twitter thread of the hearing may be accessed here.

Case Background

The Uttar Pradesh Police had registered an FIR against him under sections 295-A of the Indian Penal Code (Deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs) and section 67 of the Information Technology Act, 2000 (Punishment for publishing or transmitting obscene material in electronic form).

The petition sought for staying the impugned FIR and protection from arrest.

On July 7, a local court in the Sitapur district of Uttar Pradesh denied bail to Zubair in connection with the impugned FIR. Judicial Magistrate First Class Judge Abhinav Srivastava denied him bail on the ground that the matter was serious, cognizable, and non-bailable in nature, and in the event of Zubair being released on bail, he was likely to repeat the said act and influence the evidence and witnesses related to the case.

Details Of The Plea

Contending that the FIR has been registered to harass Zubair, it has been argued in the petition that the allegations in the same are false and baseless and the offences u/s 295A IPC and 67 of IT Act are not made out against him.

Reliance was also placed in State of Haryana v. Bhajan Lal & Ors. 1992 AIR SC 604, Swaran Singh & Ors. v. State (2008) Cri M 4369, Union of India v Prakash P Hinduja (2003) 6 SCC 195 to contend that the allegations in the impugned FIR even if taken on their face value and if accepted in entirety did not prima facie disclose any offence.

"Allegations made in the FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. The registration of the said FIR amounts to an abuse of the process of law, intended to intimidate, silence and punish independent journalism; and any coercive action against the petitioner would amount to a grave miscarriage of justice," plea also stated.

It was also stated in the petition that the inclusion of this criminal offence in the FIR portrays the cavalier, malicious and arbitrary manner in which the State has acted against the Petitioner.

"Police are threatening to arrest the petitioner and the life and liberty of the petitioner is in danger," the plea further stated.

The petition had raised the following questions of law:

1. Whether the FIR is sustainable taking into account that by no stretch of imagination are any of the essential ingredients of the alleged offences can be made out?

2. Whether the Hon'ble High Court has erred in allowing the investigation into the FIR to continue even though no prima facie case is made out?

3. Whether the tweet made by the Petitioner satisfy the test of Section 295 IPC, i.e. whether deliberate and malicious intention to insult any religion is made out?

4. Whether in view of the Judgement of the Hon'ble Supreme Court in S. Ranganathan v. UOI [ 1989 2 SCC 574], the impugned FIR can be sustained?

Case Title: Mohammad Zubair v State of UP & Ors| Diary No(s). 18601/2022

Click here to read/download the order