Supreme Court grants interim bail to fact-checker Mohammed Zubair in UP FIR, but bars him from tweeting 

The Supreme Court's vacation bench rejected the contentions of the Uttar Pradesh government, vehemently submitted by its senior counsel, against granting Zubair bail, even though it agreed to qualify its order to the FIR filed by the Uttar Pradesh police. This means that Zubair, who is already under the custody of the Delhi Police, cannot get immediate relief. 

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THE Supreme Court earlier today granted five days of interim bail to Alt-News co-founder Mohammed Zubair in a First Information Report ('FIR) filed in district Sitapur of Uttar Pradesh even as counsel for the state government vehemently opposed any relief.

A vacation bench comprising Justices Indira Banerjee and J.K. Maheshwari passed the order to this effect. The bench, however, directed Zubair not to put out any further tweets.

"In the meanwhile, the petitioner shall be granted interim bail in connection with FIR No. 0226 dated 01.06.2022 lodged at P.S. Khairabad, District Sitapur, Uttar Pradesh for a period of five days from today or until further orders of the Regular Bench on terms and conditions to be imposed by the Judicial Magistrate-I, Sitapur, which shall include the conditions that the petitioner shall not post any tweets and shall not tamper with any evidence, electronic or otherwise in Bengaluru or anywhere else", the court ordered.

The matter will now be heard on July 12.

Zubair will however not walk out of jail since he is already in judicial custody in another case filed by the Delhi Police under Sections 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) and 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code ('IPC'). Later, the police added Sections 120B (criminal conspiracy) and 201 (causing disappearance of evidence of offence, or giving false information to screen offender) of the IPC, and Section 35 (punishment for contravention of any provision of the Act) of the Foreign Contribution (Regulation) Act, to the FIR against Zubair.

The bench was hearing a petition filed by Zubair challenging the Allahabad High Court's order refusing to quash an FIR registered against him on July 1 for a tweet in which he allegedly called three Hindu seers – Yati Narasinghanand, Mahant Bajrang Muni and Anand Swaroop – "hate mongers".

No case made out

Senior advocate Colin Gonsalves, appearing for Zubair argued that no case was made out against Zubair. Referring to the tweet in question, Gonsalves submitted that Zubir was highlighting hate speech.

"While those who gave hate speeches are out on bail, the one who exposed them is in jail", said Gonsalves.

"When I say, hatemongers… I am not wrong. Police have arrested them. And once out on bail, they are again indulging in hate speech. Why need to recover my mobile from Bengaluru. I have admitted to this tweet. What is the investigation needed for?", Gonsalves added. He also referred to the order passed by the Attorney General, K.K.Venugopal, granting consent to initiate contempt proceedings against Yati Narsinghanand for making remarks on the Constitution and the Supreme Court.

"I exposed this kind of venomous language against judges, and the Constitution. I am in jail for this", Gonsalves added.

Gonsalves argued that the high court did not appreciate any of the arguments made by the petitioner; instead, it observed that a prima facie case against Zubair was made out. It is this observation that led to his arrest, he asserted.

Also read: Delhi High Court's probe sought into how police got advance information about denial of bail to Alt News co-founder, Muhammad Zubair

 Suppression of facts

Solicitor General Tushar Mehta, appearing for the Uttar Pradesh government, argued that Zubair's matter isn't about one tweet; it has to be ascertained whether he is part of a syndicate to destabilise society by making the same kind of tweet again and again. Mehta also raised preliminary objections to the petition. He accused Zubair of suppression of facts, including rejection of bail yesterday through a speaking order by a Sitapur court and the grant of police custody.

Gonsalves, however, replied that the order was made available to him very late at night on July 7. He questioned the relevance of judicial custody and police remand, let alone any investigation, when Zubair is admitting the tweets.

"This is a purposeful suppression of facts. Without telling that his bail was rejected by the trial court yesterday, they have moved for bail here", Mehta argued. He asserted that interim bail would amount to overcoming the judicial order sending Zubair to police custody.

 Religious gurus

Additional Solicitor General S.V. Raju, who was appearing for the Investigating Officer, and the Director-General of Police, Uttar Pradesh, sought to justify the charges against Zubair. He submitted that if religious gurus are to be called hate-mongers, then it rings a different type of bell. "Whether the tweet is with the intention to incite violence can't be decided in a quashing petition", he said. Raju also argued that instead of writing to the police, Zubair had been tweeting to incite violence. He submitted that a prima facie case is made out under sections 295A and 153A of the IPC.

 "Bail has been rejected which has not been challenged. Police custody was ordered. He has been taken to Bengaluru for investigation. Not a fit case for entertaining this application now", Raju argued.

Gonsalves, however, maintained that when Zubair called the three gurus hate mongers, he was not wrong. The police had arrested them because of the allegations against them. Mehta, while agreeing that the allegations of hate speech against Narasinghanand might be valid, claimed that those against the other two gurus could lead to law and order problems. When Gonsalves began to read out the hate speech allegations against the other two, the bench stopped him, saying they got what he was trying to say, and he needn't say anything more.

At one stage, Justice Maheshwari asked Mehta not to interrupt when Gonsalves was making his submissions and reminded him that he was a senior member of the Bar, and should be aware of the traditions of the court.

Mehta tried to make the point that the investigation was around the suspicion whether Zubair is part of a syndicate, as such tweets "are repeatedly posted". Mehta also referred to allegations of receipt of foreign contributions by Zubair's company, Alt News.

Mehta also reminded the bench that the Special Leave Petition jurisdiction is discretionary, and cannot be treated as a regular appeal. He told the bench that the charges under Section 67 of the Information Technology Act – relating to obscenity – have been dropped against Zubair. "There is something more than meets the eye", he told the bench.

Gonsalves reiterated his view that if Zubair pointed out hate speech of others, it could not mean the promotion of enmity between two religions, which is one of the ingredients of the offence under Section 153A of IPC.

Mehta, however, called Zubair a habitual offender. "We are not in TV debate, I avoid going to such debates, you know that", Mehta told Gonsalves.

Shocking state of affairs

When both Raju and Mehta questioned the urgency of hearing Zubair's petition by the vacation bench, because lower courts had already intervened in the matter, Justice Banerjee responded that when someone alleges his liberty is at stake, the bench cannot refuse a hearing immediately, and, therefore, it had to be listed today.

Mehta and Raju soon changed tack and complimented the bench for scheduling the hearing urgently on the ground of possibility of deprivation of liberty of an individual, but insisted that their point was that he suppressed important information from the bench relating to the lower courts' orders.

"If you are in police protection, where is the question of anyone killing you", Mehta responded to Zubair's invoking of Supreme Court's jurisdiction on the ground that his life was in danger. "His conduct is deplorable and he has not come with clean hands", Mehta commented.

Mehta drew the attention of the bench to the fact that Zubair has not challenged two orders of the competent courts below, one dealing with the rejection of bail, and another granting police remand.

Gonsalves, however, drew the bench's attention to the "shocking state of affairs" that this case points out.

A local court in Uttar Pradesh's Sitapur had initially sent Zubair to 14-days judicial custody on July 5. On July 7, the same court had rejected his bail application and had sent him to police custody from July 8-14.

Click here to view the Supreme Court's order.