A Delhi court on Tuesday granted the Delhi Police four more days of custody of fact-checking website Alt News co-founder Mohammed Zubair, a day after he was arrested for his “objectionable tweet” in 2018.
Chief metropolitan magistrate Snigdha Sarvaria of the Patiala House Court also allowed the police to take him to Bengaluru to recover his phone and laptop from his residence.
The order came after advocate Vrinda Grover opposed the remand application by the police, arguing for over an hour on alleged violation of arrest procedures, the lack of ingredients required for the offences in the first information report, and how Mr. Zubair was being targeted for his work and because of his faith.
Moving an application seeking Mr. Zubair’s custody for five more days, the substitute Additional Public Prosecutor submitted that the accused had “deliberately” hurt the religious sentiment of one community through the tweet in question, in which they alleged that he had “edited the photograph to change the name of a hotel from Honeymoon Hotel to Hanuman Hotel”.
Ms. Grover submitted that the photograph in question was a still from the 1983 Hindi film Kissi Se Na Kehna and had not been tampered with in any way, proceeding to seek the court’s permission to play the relevant scene from the movie, which the court declined.
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In her order, the judge said, “The submissions with respect to the photograph being a part of a movie are also of no assistance to the accused at this stage”.
The court also dismissed the precedent cited by Mr. Zubair’s counsel to contest the charge under Section 295A of the Indian Penal Code (IPC), saying they “are also not of any assistance to the accused”.
Ms. Grover had come around to arguing on the charge under Section 295A of the IPC, while she was arguing as to how the ingredients for the charge under Section 295 of the IPC were not made out. The police had initially registered the FIR under Sections 153A and 295 of the IPC. While challenging the latter charge, Ms. Grover pointed out that this section was for “injuring or defiling a place of worship with intent to insult the religion of any class” and asked how the tweet in question satisfied any of these ingredients.
It was at this point that the prosecution said they had now dropped Section 295 from the FIR and had added Section 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) instead.
During the arguments on the police’s remand application, the prosecution made short submissions, saying that the handle based on which the FIR was registered was not anonymous and that it had been verified by the police.
In addition, the prosecution argued for continued custody of Mr. Zubair citing that he had allegedly “wiped his phone and brought a blank phone” to the interrogation.
“He has also threatened that the material from his laptop in Bengaluru would be deleted if something were to happen to him,” the substitute APP said.
Apart from this, the prosecution only repeated the allegations in the FIR multiple times, following which the substitute APP arguing the case chose not to add his name in the order copy as is customary.
Mr. Zubair’s counsel also argued that the charge under Section 153A of the IPC(Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) was not made out, citing precedent that said two communities must be involved for this section to be invoked.
“Which two communities are here? Are the police saying that the tweet in question promoted enmity between Hanuman Bhakts and honeymooners?” she said. But dismissing the precedent cited for this argument as well, the court said that the citation involved Sections 153A and 505 of the IPC and the submissions in this regard “are of no assistance as present investigation is going on qua offences U/Sec.153A/295A IPC against accused”.
Arguing against the Delhi Police’s demand to seize Mr. Zubair’s phone and laptop, Ms. Grover further said that the police already had his current mobile phone, and that the phone he was using at the time the tweet was made was reported stolen — a fact that the Delhi Police have on record acknowledged in a status report in a separate case.
“As for the laptop, repeated undertakings have been given to the police that all his activity on Twitter is done through his phone and not the laptop. Like lawyers, journalists have sensitive material related to their work on their laptop in addition to other personal materials. This is an attempt to conduct a fishing inquiry, which goes beyond the scope of the present case,” she submitted.
Ms. Grover submitted, “Multiple Twitter handles on multiple occasions since 2018 have posted the exact same picture and these accounts have in fact credited a particular political party for the change of a hotel’s name from ‘Honeymoon’ to ‘Hanuman’,” submitting a list of such tweets to the court, further positing that Mr. Zubair was being “maliciously targeted” simply for the work he does.
Ms. Grover said, “His work challenges what certain people speak, some of whom are powerful. But that is his job — speaking truth to power… Can my liberty be restrained even for a day because I am somebody who does not agree with someone in power?” further arguing that of all the tweets made with the photo in question, Mr. Zubair was being chosen because of his work and “because of his faith, which is shown by his name”.
Ms. Grover said, “The entire case borders on absurdity.” She added that despite the tweet in question being from March 2018, the police claimed to have stumbled upon it based on a tweet of this anonymous account going by “Hanuman Bhakt”, which was made in June 2022. “This account was created in 2021 and the first and only post made by it came days ago, which was magically picked up by the police,” Ms. Grover submitted, adding, “If an anonymous Twitter handle chose to create mischief after four years those reasons should be investigated I think… Abuse of legal process is writ large over here.”
On the arrest procedure, she Ms. Grover said that Mr. Zubair was served notice under Section 41A of Cr.PC at the last minute, arguing that the arrest procedures set down in the Arnesh Kumar judgment “cannot be reduced to a paper formality”.
Also Dismissing this line of argument, the court said the submission in this regard “is not of any use as notice U/Sec.41A Cr.PC was given to the accused and is part of record of the police file”.
While granting the Delhi Police further custody of Mr. Zubair, the court also allowed an application by his counsel, which sought visitation rights every day for 30 minutes while he was in Delhi and Bengaluru.
