'UP Police FIR A Strategy To Stifle Secular Persons Who Stand Up Against Communal Elements' : Mohammed Zubair To Supreme Court

The Uttar Pradesh Police had booked 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 wherein Zubair had sought for staying the impugned FIR and seeking protection from arrest him was mentioned by Senior Advocate Colin Gonsalves before the vacation bench of Justices Indira Banerjee and JK Maheshwari.

Urging the bench to list the matter urgently, Senior Counsel said that a look at the FIR showed that there was no crime and that the Allahabad High Court had refused to grant pre arrest bail to Zubair.

The bench said that the matter could be listed tomorrow, subject to assignment by the Chief Justice of India.

"The bench said that the matter can be listed tomorrow, subject to assignment by the Chief Justice of India," the bench noted in the order.

Allegations In FIR False & Baseless; Offences u/s 295A IPC & 67 IT Act Not Made Out Against Him

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.

It has further been argued that nowhere in the tweet the petitioner mentioned any sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader which is the pre requisite of S. 67 IT Act. The petitioner also argued that as neither there is any insult or attempt to insult with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India on part of the petitioners, case u/s 295A has also not been made out.

Alleging that it is a  "new strategy of the police" to register FIRs against those monitoring hate speech, the plea states, "It is therefore imperative that this Hon'ble Court understand this new strategy and nip it in the bud so that secular social activism continues on its path and plays the most necessary role in society to stand up to communalism."

"This is done with the intention of stifling freedom of speech of secular persons in society who stand up against communal elements and to put fear into them so that they no longer protest", the plea stated.

Reliance has also been 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 do not prima facie disclose any offence.

FIR Has Been Lodged By Police Without Proper Enquiry

Stating that the FIR has been lodged by the police without proper enquiry and application of mind, the plea states that,

"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."

Police Is Threatening To Arrest; Persisting Threat On Petitioner's Life & Safety

It has also been 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 states.

It has further been stated that it's not the first time that Zubair has been harassed or intimidated for his fact check tweets and that often he's subject to online trolling, abuses, threats and frequent demeaning by people who do not agree with his posts.

The petition raises 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