Mohammed Zubair's case shows Supreme Court's guidelines have been wilfully ignored.
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A first information report ('FIR') is the report registered by the police first in point of time regarding an alleged offence committed by a person or group of persons, based on information received from a person or upon the own knowledge of the police official. Thereafter, the police conduct investigation in accordance with the provisions of the Criminal Procedure Code ('CrPC'), which includes arrests, production of the accused before a Magistrate, examination of witnesses, and filing of the final report concluding the investigation.
The entire aforementioned procedure is codified in the CrPC, and must be strictly adhered to. The CrPC also provides for checks and balances with respect to the powers of the police, and the rights of the accused persons.
The questions dealt with in this article are two-fold:
– Is modification of the FIR permissible under the law?
– By keeping the FIR unamended, can investigation be conducted for offences other than the ones mentioned in the FIR?
The CrPC does not have any particular provision which either categorically permits or prohibits the same; however, as a matter of practice, the police are permitted to investigate for offences which they reasonably believe to have been committed by the accused person on the basis of facts and circumstances which may be revealed during the investigation, which is initially based on the FIR.
However, the FIR, as the name suggests, is the first information report, and therefore once registered, cannot be changed or altered. In the event the FIR is altered, it shall lose its entire sanctity.
This particular issue has been highlighted in the on-going cases against fact-checking website Alt News co-founder Mohammed Zubair.
“If amendment of the FIR is allowed, the accused person will never be in a position to defend themself because they will never have the knowledge about the nature of allegations raised against them, since the same shall always be susceptible to being changed.
The Delhi Police had arrested Zubair on the basis of his tweet posted in 2018, wherein he shared an image from a 1983 Hindi film, which showed a signboard change from Honeymoon Hotel to Hanuman Hotel. The same was accompanied by the text: "Before 2014 – Honeymoon Hotel and After 2014 – Hanuman Hotel".
On the basis of this tweet, Zubair was initially booked for offences punishable under Sections 153A and 295 of the Indian Penal Code ('IPC'). Let us take a look at both these sections.
153A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—(1) Whoever—
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity,
(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Offence committed in place of worship, etc.—Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
(emphasis supplied)
Whether the offence as alleged was even prima facie made out or not is a topic for discussion in another article; however, there are no direct fetters on the powers of the police to register an offence and investigate when information regarding a cognizable offence has been received. Therefore, registering the aforementioned offences may not be totally illegal.
Since the offence as alleged was cognizable, the police arrested Zubair without any arrest warrant, and thereafter produced him before a Magistrate's court at 11:30 p.m. on June 27, obtaining police custody for a period of one day. However, when he was produced before a regular court the next day, what had been observed is that the FIR initially registered for offence punishable under section 295 was altered and changed to Section 295A by adding the letter 'A' after section 295.
Let us take a look at section 295A of the IPC: –
295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.—Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
As can be seen, sections 295 and 295A are distinct and have no connection with each other. Section 295 deals with the defiling of any place of worship, whereas section 295A deals with deliberate and intentional outraging of religious feelings. It is therefore evident on the face of the FIR that the same has been registered for a totally wrong offence which was later on amended.
The question that arises is whether the act of registering an FIR for an offence punishable under section 295 prohibited the police from conducting investigation for offences under section 295A? The answer to the question is No.
“Under no circumstances should the FIR against Zubair have been altered and the only plausible option for the police was to conduct their investigation for whatever offences, according to them, are made out, and then, at the time of filing of the chargesheet, to disclose on the basis of the investigation conducted, which particular offence is made out.
However, instead of amending the path of their investigation, the police chose to amend the FIR by adding the letter 'A' and thereby completely changing the nature of the allegations against Zubair, which is not only illegal but also opposed to the principles of natural justice. If such practices are allowed, the accused person will never be in a position to defend themself because they will never have the knowledge about the nature of allegations raised against them, since the same shall always be susceptible to being changed.
Therefore, under no circumstances should the FIR have been altered and the only plausible option for the police was to conduct their investigation for whatever offences, according to them, are made out, and then, at the time of filing of the chargesheet, to disclose on the basis of the investigation conducted, which particular offence is made out and which particular offence has not been made out.
Further, considering the allegations, none of the offences as alleged are punishable for more than seven years' imprisonment.
In a judgment last week, the Supreme Court in Satender Kumar Antil versus CBI has reiterated the principles laid down by it in Arnesh Kumar versus State of Bihar (2014), and issued guidelines in terms of Sections 41 and 41A of the CrPC to be followed before effecting an arrest in terms of offences punishable up to or less than seven years' imprisonment. The same does not seem to have been followed in the instant case.
The relevant portion of Arnesh Kumar is reproduced to understand the significance of sections 41 and 41A.
"The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused.
“The Magistrate authorising the detention was duty bound to verify whether the arrest was warranted in a case where the alleged offence dates back to 2018 in relation to a photograph which dates back to over 40 years in time. Neither any adequate reasons as mandated under section 41(1) of the CrPC for effecting the arrest was mentioned by the police officer nor was the same verified by the Magistrate, and a mechanical order authorising detention was passed.
In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny."
The notice issued to Zubair was apparently when he was at the office of the Special Cell, and thereafter was immediately arrested on the alleged grounds of non-cooperation. The Magistrate authorising the detention was duty bound to verify whether the arrest was warranted in a case where the alleged offence dates back to 2018 in relation to a photograph which dates back to over 40 years in time. Neither any adequate reasons as mandated under section 41(1) of the CrPC for effecting the arrest was mentioned by the police officer nor was the same verified by the Magistrate, and a mechanical order authorising detention was passed. Such mechanical orders of detention have been condemned by the Supreme Court in Arnesh Kumar.
Further, in Satender Kumar Antil, the concluding part of the judgment contains guidelines, the relevant portion of which is reproduced below:
"b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.
c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.
(emphasis supplied)
On the latter count alone, Zubair should have been released on bail. However, these points are for the advocates appearing on behalf of Zubair to place before the courts, and for the courts to appreciate the contentions.
Therefore, on a prima facie look at the entire scenario, the FIR against Zubair seems to have been lodged hurriedly, and in that process the police have committed a blatant illegality.