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Jul 09, 2022

As Zubair Is Hounded by Deliberate Chicanery and Legal Malafides, Is UAPA Next?

It is clear to see that Mohammed Zubair will be chased, humiliated and kept in confinement for one reason or another for as long as possible.
Illustration: Pariplab Chakraborty

Franklin D. Roosevelt was wrong when he said, ‘The only thing we have to fear is fear itself.’ We have also to fear the Unlawful Activities (Prevention) Act.

Let me examine the case of Zubair Mohammed, the Alt News co-founder.

A First Information Report (FIR No. 172/2022) was lodged against him by Sub-Inspector Arvind Kumar a police officer of the Special Cell, Delhi on June 20, 2022 at 2.10 am. As per the complaint, Zubair had committed an offence being a violation of sections 153A and 295 of the Indian Penal Code (IPC).

Note, Section 295 was invoked and not Section 295A of the IPC.

For the present purposes, Section 153A of the IPC relates to promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony between different religious etc. groups. In other words, the act must be conscious and with an intention (or mens rea) to promote enmity between groups. Alternatively, the offender must commit an act prejudicial to the maintenance of harmony between groups.

An offence under this section is cognisable, that is to say that the police can act on it without an order from a Magistrate, and it is non-bailable. That an offence is non-bailable does not mean that the offender must necessarily or compulsorily be arrested; it only means that if the offender is arrested, he or she must apply for bail to be released. The maximum period of imprisonment on conviction under this section is three years. 

Section 295 of the IPC relates to injuring or defiling a place of worship, with intent to insult the religion of any class. The title of the section is self-explanatory. This too is a cognisable and non-bailable offence. The maximum period of imprisonment for a person convicted under this section is two years. 

What does the FIR against Zubair say?

It says that during social media monitoring, Arvind Kumar came across a Twitter handle, ‘Hanuman Bhakt’ which shared a tweet by another Twitter handle (of Zubair) stating “Before 2014: Honeymoon Hotel. After 2014: Hanuman Hotel.” Zubair’s tweet also has a picture of a sign board of a hotel named ‘Honeymoon Hotel’ (in Hindi) changed to ‘Hanuman Hotel’ (in Hindi).

‘Hanuman Bhakt’ tweeted that, “Linking our God Hanuman ji with Honey Moon is direct insult of Hindus because he is brahmchari. Kindly take action against this guy.”

The tweet (now deleted) on the basis of which Mohammed Zubair was arrested.

The complainant goes on to say in his FIR that, “These words and picture…used…against a particular religious community and are highly provocative and more than sufficient to incite feeling of hatred against people which can be detrimental for maintenance of public tranquility in the society.”

The complainant further says that, “Transmission and publication of these posts has been deliberately done by…Zubai… through electronic media to insult the religious feelings of a particular community with intent to provoke breach of peace which attracts offence under section 153A/295 IPC and hence from the contents of above mentioned post from the Twitter handle…offence U/s 153A/295 IPC is made out. Please register a case U/s 153A/295 IPC and mark the investigation of the case to me.”

Please note again, one of the sections repeatedly referred is 295 of the IPC and not 295A. 

The complaint is of June 20. What happened over the next few days is not clear, but what should have happened is this: Arvind Kumar should have identified “Hanuman Bhakt” – was he a real person or a bot?

If the tweet directly insulted Hindus, why didn’t “Hanuman Bhakt” himself take action by filing a complaint?

When did Zubair put out the allegedly offensive tweet?

As a follow-up to the tweet, did Arvind Kumar try and investigate if the tweet actually caused any adverse reaction or disturb public tranquillity or harmony?

Is it that only one person (‘Hanuman Bhakt’) felt offended or did anybody else feel offended? Everyday, there are hundreds of tweets that are not liked by somebody or the other. Will all such tweeters be subject of a criminal complaint because only one person is offended? Is that the scope and intent of sections 153A and 295 of the IPC?

More importantly, why did Arvind Kumar allow his shoulder to be used to fire the gun (so to speak)? His intention is quite obvious when he says in the complaint “mark the investigation of the case to me.” Why? Why not to any other police officer? This is tell-tale and highly suspicious. 

Anyway, it appears that Arvind Kumar did nothing for a week – yes, seven days – in spite of the tweet being, as he described it, “highly provocative.” So much for keeping the peace, harmony and public tranquillity.

Also it should have been obvious to Arvind Kumar (without any investigation, except into the IPC) that there was no way that the tweet could have attracted the provisions of section 295 of the IPC. Total non-application of mind.

On June 24, a notice was issued to Zubair calling him to appear before the Special Cell in connection with FIR No. 194/2020. In that case, Zubair had earlier obtained anticipatory bail from the Delhi high court. So appearing before the Special Cell was not something to be apprehensive of. Moreover, in February this year, the Delhi high court had asked for a status report with regard to the case and on May 26, a status report was filed by the Special Cell to the effect that no cognisable offence was made out. 

As directed, Zubair appeared before the Special Cell and it is said that he was not questioned about FIR No. 194/2020 as indeed it was not necessary or even advisable since no cognisable offence was made out.

In a move that can only be described as deliberate chicanery, Zubair was served with a notice under Section 41A of the Criminal Procedure Code (CrPC) requiring him, while he was in the Special Cell, to join investigations in respect of FIR No. 172/2022. At that time, Zubair was not a free man – he had been summoned by the Special Cell in respect of FIR No. 194/2020 and apparently had not yet been discharged by the Special Cell. 

Zubair was then asked some questions and it is said that he refused to answer most questions. It is said that he refused to even sign some paper, apparently acknowledgement of the Section 41A notice. In effect, he was not cooperating with the Special Cell.

What were the questions? What was the need of the Special Cell to resort to devilish subterfuge to entrap Zubair? What does non-cooperation mean in such circumstances – refusal to accept guilt?

It seems that the only cooperation extended that evening was between officers of the Special Cell. “Come into my parlour,” said the spider to the fly. That officers of the state should use such disgusting tactics against a citizen of our own country speaks volumes of their intent and mindset.

This is also an example of both factual and legal mala fides

Also read: ‘Justice System Can’t Sink Lower’: Judges, Experts on Zubair’s Bail Denial, Legal Lapses

Armed with the FIR, a story of “refusal to answer most questions” and an allegation of non-cooperation, the Special Cell arrested Zubair and produced him before the Duty Magistrate close to the witching hour. 

What did the learned Magistrate do and what should the learned Magistrate have done?

Well, the learned Magistrate recorded that Zubair had joined investigations pursuant to a notice issued to him under Section 41A of the CrPC. It seems, therefore, that he did initially cooperate. However, he refused to answer questions put to him and so it could be said that he was not cooperating in the investigations. Since he was not cooperating, he did not deserve bail. Accordingly, he was remanded to police custody for one day.

What should the learned Magistrate have done?

Before answering this, let me be very clear – I have nothing against the learned Magistrate and the idea is not to criticise the Magistrate, but only explain the procedure that should be followed. Please do not misunderstand me. 

First, the legal aspect.

The law requires a Magistrate to be satisfied that a meaningful notice under Section 41A of the CrPC was issued to Zubair and not a pro forma kind of notice only to put on record that the required procedure had been followed.

Due process? In other words, the law declared by the Supreme Court in the case of Arnesh Kumar v. State of Bihar (2014) must be followed. Before laying down the law in that case, the Supreme Court made an important observation: “The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof.”

This is a very significant observation. Please note.

Then (and importantly) while interpreting Section 41A of the CrPC, the Supreme Court held:

“Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, [in Section 41A of the CrPC] while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised.” 

The matter doesn’t end there. The Supreme Court went on to lay down an obligation on the court and held:

“…[W]hen an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer…”

The law, therefore, requires a Magistrate to be satisfied on documentary material produced in the form of the case diary or a document that records “the reasons in writing” for making the arrest. There should be a proper scrutiny because the police is seeking to curtail the liberty of the alleged offender.

The law also requires the Magistrate to record his own (and independent) satisfaction which must be reflected in the order passed by him. Merely perusing the case diary is not enough.

Last year, the Supreme Court reiterated the conclusions arrived at in Arnesh Kumar. It was noted in Siddharth v. State of Uttar Pradesh (2021): “We may note that personal liberty is an important aspect of our constitutional mandate…Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it.”

Is anybody listening?

A mere oral submission or a simple written statement by the police that the accused is not answering most questions is not enough. What were the kind of questions asked and could he have answered them in the normal course?

What is the kind of cooperation expected? Is the accused required to admit his guilt and thereby cooperate?

Take a hypothetical example. Assume the police had asked Zubair where he got the picture of the hotel signboard from and whether he had morphed it. Zubair’s answer would have been that it’s a grab from a 1983 Hindi movie and it is not morphed. The police could very well have concluded that it was a smart alec kind of answer and that Zubair was not answering the question.

What happens in the case? Non-cooperation in such a case is entirely subjective and let’s be clear, no accused will ever objectively cooperate (unless tortured) and that is why the need for good, wholesome interrogation. 

That the ipse dixit of the police should not be accepted leads to the question about the investigation carried out by the police. What did the police do from June 20 to June 27? Is there anything on record, except an allegation of not answering most questions and not cooperating? Was the Magistrate informed of the investigations made?

On the facts of Zubair’s case, if the Special Cell had done an iota of investigation, it would have found that the tweet is more than four years old. Four matters of significance arise from this simple fact. 

First, because of its vintage, no court can take cognisance of the offence under Section 153A of the IPC. Section 468 (2) of the CrPC prohibits the court from taking cognisance of an offence beyond the period of limitation. In the case of an offence punishable with three years imprisonment, such as section 153A, the limitation period is three years. The tweet being four years old, no court could have taken cognisance of the offence punishable under section 153A of the IPC. QED.

Second, the tweet did not even cause a ripple. Remember, in Balwant Singh v. State of Punjab (1995), two Sikh gentlemen shouted three slogans on the day Indira Gandhi was assassinated, one of them being, ‘Khalistan Zindabad’. In a prosecution under Section 153A, the Supreme Court held:

“The facts and circumstances of this case unmistakably show that there was no disturbance or semblance of disturbance of law and order or of public order or peace and tranquility in the area from where the appellants were apprehended while raising slogans on account of the activities of the appellants. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed.” 

The Supreme Court then concluded:

“It appears to us that the raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from any one in the public can neither attract the provisions of Section 124A or Section 153A IPC Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants …”

Apply this principle in Zubair’s case. There is no mention in Zubair’s case that public order or peace or tranquillity was disturbed. Only one person, not even two, reacted and that too anonymously and after several years. Is it enough to warrant the arrest of Zubair? Is it an exhibition of maturity and sensitivity? 

Third, some investigation would have revealed to Arvind Kumar that the picture in the tweet was a grab from a 1983 movie. It is quite likely that Zubair would have told him about this but was disbelieved. How could a picture from 1983, almost 40 years ago and from a movie perhaps watched by millions, have inflamed passions so as to disturb peace and tranquillity in 2022? 

Fourth, how does section 295 even come into consideration? This section deals with injuring or defiling a place of worship. How can a tweet ever injure or defile a place of worship? This completely beats me. It shows a clear and complete non-application of mind by the arresting officer. It is difficult to say anything more on this topic.

Coming back to the legality of ‘operation arrest’.

The Constitution of India (no less) provides under Article 22 clause (1) that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” The last six words of this clause are very important.

Was Zubair allowed to consult a lawyer of his choice and be defended by him? It is possible, but unlikely given the circumstances. Zubair was produced before the Duty Magistrate at 11.30 pm and it is more than likely that the lawyer provided to him was a panel lawyer of the Delhi Legal Services Authority and not a lawyer of his choice. If this is so, then a constitutional right of Zubair was denied to him, if not violated.

Can a constitutional violation be overlooked or ignored?

In the matter of Madhu Limaye (1968) the Supreme Court observed that “Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the rule of law prevails.”

Was Zubair informed of the grounds of arrest, so that he could brief a legal practitioner of his choice? Possibly not. Madhu Limaye (and others) were not informed of the grounds of arrest. The Supreme Court, therefore, found a violation of Article 21(1) of the Constitution which vitiated the detention. The Supreme Court went on to hold that, “If their detention in custody could not continue after their arrest because of the violation of Article 22(1) of the Constitution they were entitled to be released forthwith.”

The orders of remand are not such as would cure the constitutional infirmities. It follows from this that the entire exercise of arresting Zubair was constitutionally infirm and a remand order cannot cure the infirmities. 

A bail application was moved by Zubair before the learned Magistrate but it was summarily disposed of on the ground that he was not cooperating with the investigative agency. What about the constitutional infirmity?

Moreover, since when did absence of cooperation become a ground for denying bail?

It is well-settled (hopefully) that bail should be declined if there is good reason to believe that the accused will not be available for questioning and may abscond or that the accused will tamper with the available evidence thereby frustrating the investigation or that he will influence the witnesses to exonerate him or provide an alibi. Occasionally, the gravity of the crime and the possibility of the accused committing a similar offence is also taken into account. But the important and supervening factor for all these considerations is that there must be existence of good reason to believe; the ipse dixit of the police is not enough – it has to be backed by some cogent and credible material.

Failure to cooperate is incredibly subjective and how is it to be defined and how is it to be proved except by placing on record the questions and answers to enable the Magistrate to determine whether the individual has cooperated or not? In fact, I believe that non-cooperation is a handy excuse trotted out by an inefficient and ineffective interrogator who does not know how to get his job done. 

Madhu Limaye’s case referred to an earlier decision of the Supreme Court in Ram Narayan Singh v. State of Delhi (1953) in which it was stated that the court has often reiterated that “…those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law.”

None of these aspects of the duty of the police was discharged and unfortunately, the learned Magistrate did not pull up the Special Cell for its special inability to follow the law and resort to cheap and disgusting subterfuge in the manner of arresting Zubair. 

Regrettably, the judiciary continued to fail the cause of justice the next day when Zubair was produced before the regular court. At the outset, it must be noted that rather surprisingly, the alleged offence under Section 295 of the IPC was suddenly converted into an offence under Section 295A before the regular court on June 28. How did this happen? It is quite a mystery.

That apart, the learned judge holding the regular court on June 28, after Zubair had spent one day in police custody, noted that remand had been granted by the learned Magistrate since Zubair did not cooperate with the investigating agency. A perfectly correct conclusion. The question that should have been asked is the same: when did failure to cooperate become a ground for denying bail or ordering remand? Even during the British Raj, non-cooperation was not a ground for denying bail granting remand, otherwise the Mahatma would have spent his whole life in jail.

Yes, Zubair was give a Section 41A notice, but the regular court should have also seen whether it was only a mechanical exercise to complete a procedural formality. Imagine a situation in which an officer of the Special Cell comes to your house or place of work and serves you with a section 41A notice, asks you a few questions and then arrests you for non-cooperation. Does this make sense? What happened to Zubair was slightly different, of course, but essentially the same and I think perhaps worse, because he was served with a Section 41A notice while he was physically with the Special Cell officers in connection with another FIR. 

Two factors ought to have been seriously considered by the regular court but were given short shrift.

One, the non-mystery of the photograph in the tweet. It was the basis of the “offensive” tweet. If that photograph had not existed, perhaps there would have no tweet. It was and is Zubair’s contention that the photograph is a still or a grab from a 1983 movie. Factually correct. Unfortunately, a rather simplistic view was taken and it was concluded that it is “of no assistance to the accused at this stage”. Pray, at what stage will it be of assistance? After a protracted trial? And why is it not of assistance – it is the very basis of the arrest?

Two, the mystery of the so-called offending phone from which the tweet was uploaded. It appears from the record that a submission was not made that the mobile phone used to upload the tweet in 2018 was not available with Zubair. This is somewhat surprising and is a bit difficult to accept. But let’s leave it at that. 

The Special Cell was given four days remand of Zubair to take him to Bengaluru to recover the device (the mobile phone or a computer) from his residence/ place of work. One question: who pays the airfare and what is the cost incurred for this journey to Bengaluru and back? Not only Zubair, but it seems that tax payers are also perhaps being taken for a ride. 

Mohammed Zubair, a journalist and co-founder of fact checking website Alt News, being taken to jail from Patiala House court on July 2. Photo: PTI

For the record, when Zubair’s case again came up for consideration on July 2 (after four days police custody), it was contended that the mobile phone used by Zubair in 2018 had been lost and that a ‘Lost Article’ report had been lodged on March 20, 2021, with the Crime Branch of Bengaluru City police. Nobody disbelieves this.

It is not necessary to delve into the merits of the order passed by the learned Judge on July 2, declining bail to Zubair and remanding him to 14 days judicial custody. The order is based on shaky foundations, but hush! The order may be challenged before the high court. 

A new charge

However, it is more than interesting to note that after meeting a dead end everywhere, the Special Cell has now alleged criminal conspiracy by Zubair (with whom?) and ‘charged’ him under Section 120-B of the IPC. The Special Cell has also made out a possible offence under section 35 of the Foreign Contribution (Regulation) Act, 2010. It is alleged that Pravda Media Foundation illegally received contributions from Pakistan, Syria, Australia etc. and that Zubair is a director in this Foundation. As per newspaper reports, the amount is said to be Rs. 2.31 lakh. A few days earlier the police was telling everybody, as reported in the media, that Zubair had transactions worth Rs. 50 lakh “in the last few days”. Whats going on? Any answers?

Notice, I have not mentioned anything about the police having announced a few hours before the learned judge remanded Zubair to judicial custody for 14 days, that that is the order. Advance breaking news? 

While all this is happening, Zubair has been taken to Sitapur and arrested in another case which is equally ridiculous. Nothing more. He has also been arrested in another case from Lakhimpur. 

What about the future? I apprehend one of two scenarios. First, Zubair will be hounded, humiliated and kept in confinement for one reason or another for as long as possible. Witness Delhi, Sitapur and Lakhimpur. In one-day cricket, it would be said that it is not important how the runs come, as long as they come. It’s the same with Zubair. It’s not important how or why he remains in custody, as long as he remains in custody. Tragic. 

The second scenario is fearsome. One city after another; one charge after another, Section 295 becomes 295A, criminal conspiracy added, then FCRA and now “larger syndicate”. Is UAPA far behind? I fear that is the next step. Will somebody look into the case with a hawk-eye and let us have the truth, the whole truth and nothing but the truth? 

Justice Madan B. Lokur is a former judge of the Supreme Court.

The featured image is an illustration by Pariplab Chakraborty. To view more such illustrations, click here.

Note: A reference to The Wire’s Tek Fog findings has been edited out as the stories have now been removed from public view pending the outcome of an internal review, as one of its authors was part of the technical team involved in our now retracted Meta coverage. More details about the Meta stories may be seen here.

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