‘Not justified’: SC gives Alt News co-founder Mohammed Zubair bail in all cases

A bench emphasised that an investigating agency must acknowledge the distinction between existence of powers of arrest and the exercise of this power.

There is “absolutely no justification” in subjecting Alt News co-founder Mohammed Zubair to endless custody for his tweets, held the Supreme Court on Wednesday, as it granted interim bail to the journalist and fact-checker in seven criminal cases registered against him in Uttar Pradesh and ordered his immediate release from jail. Zubair has been in custody since June 27.

Alt News co-founder Mohammad Zubair leaves Tihar Jail in New Delhi on Wednesday. (PTI)

A bench, led by justice Dhananjaya Y Chandrachud, emphasised that an investigating agency must acknowledge the distinction between existence of powers of arrest and the exercise of this power. “Existence of the power to arrest must be used sparingly,” asserted the bench, which also included justices Surya Kant and AS Bopanna.

Clubbing and transferring all the seven first information reports (FIRs) against Zubair from Uttar Pradesh to Delhi where the special cell of Delhi Police is already carrying out a thorough investigation into all his tweets and financial dealings, the bench directed that the journalist furnish a personal bond of ₹20,000 before a Delhi magistrate and that he be released by 6pm on Wednesday by the Tihar Jail administration.

He was released from Tihar Jail shortly before 8.30pm, prison officials said. “Mohd Zubair has been released from Tihar,” PTI reported a senior official as saying.

“Essentially, the gravamen of the FIRs pertains to the tweets. Having regard to the fact that the petitioner has been subjected to comprehensive investigation by the Delhi police, we find no reason for his deprivation of personal liberty to persist,” said the court order, clarifying Zubair will be entitled to automatic bail in relation to all such future FIRs as well.

The direction on his release by 6pm as well as the clarification that Zubair will be entitled to automatic bail appear to have been prompted by the rash of similar cases filed against him, and in rapid succession.

There are two FIRs against Zubair in Hathras, and one each in Sitapur, Lakhimpur Kheri, Ghaziabad, Muzaffarnagar, and Chandoli (the latest one, filed after he approached the apex court seeking that the UP cases be clubbed) in connection with his tweets, which allegedly promoted enmity between communities and offended religious sentiments. He was arrested by the Delhi Police on June 27 under similar charges for a 2018 tweet. He was granted bail in the Delhi case on July 15 but remained in jail due to the other FIRs in UP.

While he was given an interim bail in the Sitapur FIR by the Supreme Court on July 8, he approached the top court again on July 14 with a plea to either quash the FIRs in UP or club all of them with the FIR at Delhi to avoid multiplicity of proceedings and prolonged detention. In the meantime, the fact-checker sought interim bail in the UP cases. When this petition was taken up by the bench on Monday, it directed the UP police not to arrest Zubair in any fresh case until the court examines his plea in detail.

On Wednesday, the bench ordered for his release while also shooting down a plea by UP’s additional advocate general Garima Prashad to restrain Zubair from posting any further tweets as a condition of his bail.

“How can we say that? It’s like telling a lawyer you will not argue... to a person that you will not speak. Like every other citizen, he is also responsible for his actions under the law. If there is any tweet against the law, he will be answerable. How can we pass any anticipatory order? We cannot ask a journalist not to write,” retorted the court.

When Prashad asked for an order that Zubair shall not tamper with the evidence, justice Chandrachud replied that all the evidence (tweets) is already in public domain. With no case to be investigated by the UP police, the court disbanded a two-member special investigation team (SIT), comprising senior police officials of the state that was set up by the UP government on July 10 to monitor the probe against Zubair.

In its order, the bench further gave Zubair the liberty to approach the Delhi high court with his plea for quashing the FIRs in the wake of his averment that his tweets make out no offence under the law and that his arrest is an attempt to stifle his right to free speech and dissent. It added that Zubair can move the Delhi high court either by filing a writ petition or an appropriate plea under the Criminal Procedure Code for quashing of the FIRs.

Stressing that the facts of the case required a “consolidated investigation” by one agency, the bench rejected UP government’s argument that Zubair should be reverted to jurisdictional courts to pursue his remedy.

“The Delhi Police has submitted a comprehensive status report showing the course of investigation, tweets which form part of the probe, and search and seizure which was carried out on premises of petitioner. It is evident that the probe by the special cell of Delhi Police is a comprehensive investigation which looks at the gamut of tweets by the petitioner,” noted the court, ordering all present and future cases should be investigated by the same agency.

Its order said: “Regarding clubbing of FIRs, it must be clarified that Delhi Police FIR has offences of cognate nature which is similar to the UP police FIRs. It would be needed to club together all FIRs and hand them over to one investigating authority. We are of the view that the prayer to club all UP police FIRs should be accepted. All FIRs registered against petitioner including the UP police FIRs be transferred to the Delhi Police special cell.”

On behalf of Zubair, advocate Vrinda Grover had earlier argued that the criminal law machinery was being used to silence and harass him, claiming none of Zubair’s tweets made any inciteful statement.

“This is an orchestrated investigation,” pressed Grover, adding the purpose behind the multiple FIRs was to keep her client in custody for the longest possible period although the entire investigation is vague and omnibus.

UP’s AAG Prashad, on her part, claimed that Zubair is not a journalist but someone who gets paid for his malicious tweets that seek to divide communities and incite people on the communal lines. “The accused is not a journalist. He calls himself a fact-checker. Instead of fact-checking, he posts tweets which are going viral and spreads venom and instigating people... He admitted that he has received ₹2 crore for such tweets. ₹12 lakhs was his share,” contended Prashad.

The state is not here because of some tweets, but because of violence that has happened after his tweets, added UP’s lawyer, saying that the state has no viciousness against Zubair who should be remitted back to jurisdictional court.

Responding to Prashad’s submissions, the bench said that the court needs to determine where the balance of justice lies and if it would be proper to leave the petitioner embroiled in a series of proceedings in UP when the gravamen of the charges remains the same and the Delhi Police is already looking into them.

The bench clarified that it has not said anything on the merit of the cases and that Zubair will be at liberty to seek annulment of the FIRs before the Delhi high court.

Zubair filed two petitions in the apex court. He initially approached the court on July 7 for quashing of the FIR against him at Sitapur and the court granted him interim bail. That FIR alleges that he hurt religious sentiments by calling three right-wing religious leaders “hate mongers” after the latter made comments against or threatening other religious communities.

In the second petition filed on July 14, he complained that of the total seven FIRs against him (this has grown to eight), six FIRs (now seven) were filed in UP alone although the entire gamut of the accusations against him were being investigated by the Delhi police in an FIR (the first to be filed) registered last month. Zubair complained that the FIRs in UP are a brazen and unconscionable abuse of legal process, and hence deserve to be quashed. Later, another FIR was lodged against him at Chandoli under similar charges.

On Tuesday, another bench of the top court agreed to examine a plea by suspended Bharatiya Janata Party spokesperson Nupur Sharma for clubbing of nine FIRs against her for her controversial comments on Prophet Mohammed during a TV debate on May 26. The court also protected her from arrest in these cases, around a fortnight after it said Sharma was “single-handedly responsible for putting the entire nation on fire”. Sharma’s case will come up for hearing again on August 10.

Sharma’s comments went almost unnoticed till Zubair posted a short video clip featuring her comments that went viral.