The Delhi High Court on Friday, 1 July, issued notice on a petition filed by Alt News co-founder Mohammed Zubair challenging the four-day police custody remand against him.
Further, the high court sought for the counter-affidavit to be filed within two weeks, the rejoinder to be filed within one week, and the matter to be listed before the roster bench on 27 July.
According to LiveLaw, the court also said that the ongoing proceedings before the magistrate would be without prejudice to the contentions expressed by the parties and the pendency of the matter before the high court.
While advocate Vrinda Grover appeared for Zubair, Delhi Police was represented by Solicitor General of India (SGI) Tushar Mehta.
Zubair was arrested on Monday, in connection with a case registered against him for a tweet from 2018, and remanded by the duty magistrate to one-day police custody. On Tuesday, Delhi's Patiala House Court extended the police remand by four days.
The charges against Zubair presently are Sections 153A (promoting enmity between different groups) and 295A (deliberate and malicious acts, intended to outrage religious feelings) of the Indian Penal Code (IPC).
The contentious tweet for which Zubair has been booked in this case carries a picture of the signboard of a hotel visibly changed from 'Honeymoon Hotel' to 'Hanuman Hotel.' It is accompanied by the text: “BEFORE 2014: Honeymoon Hotel. After 2014: Hanuman Hotel”.
The picture, however, is a screenshot of a scene from a 1985 comedy film Kissi Se Na Kehna.
More From the Court
Live Law also quoted Delhi High Court’s Justice Sanjeev Narula as noting that the remand order was ending on Saturday and that Zubair would be produced before the magistrate on 2 July.
"I don't know if they are seeking for extension but... accused may be released, may be sent to Judicial Custody. Why don't you urge these points before Trial Court?” the court orally remarked, adding:
“If talking about legality, I'll have to issue notice, serve the other side."
What Did Zubair's Counsel Say?
Appearing for Zubair, Grover reportedly pointed out that the question was about whether the nature of the case is such that it would warrant a remand in the first place.
Further, she said that Zubair’s arrest was in violation of Supreme Court’s Arnesh Kumar guidelines, as well as an attempt to breach his journalistic freedom (via confiscation of his mobile phone and laptop).
"If they want my phone of 2018, was any notice given under 41A, did you ask me to bring it from Bangalore? No section 91 notice issued, 41A notice issued and within half an hour arrest is effected. There is a mockery of Arnesh Kumar guidelines, and if the Court doesn't stop this, nobody is safe in this Country."Advocate Vrinda Grover, appearing for Zubair
Grover also told the court that Zubair was called for questioning in a different (2020) FIR against him, but arrested in this latest matter.
"I arrive at 2PM. It is a matter of record. I wasn't asked even a single question. This is how I was lured. Thereafter, at around 5:30 PM, I am served a notice in this FIR for the first time. Why wasn't it sent along in other matter? I am there for interrogation and another notice is slipped in. Within half an hour I am arrested.”Vrinda Grover, appearing for Zubair.
Further, she pointed out that initially Zubair was booked under section 295 IPC (injuring or defiling a place of worship), but since no place of worship was destroyed, "they had to quickly change the provision itself (to 295A IPC).”
What Did the Solicitor General of India, Appearing for Delhi Police, Say?
SGI Tushar Mehta’s counter-arguments included that the matter is still under investigation, and that even if the court concludes that the remand order was wrong, the consequence would be that Zubair will be sent to judicial custody.
"Can the High Court in extraordinary jurisdiction examine something which has to be examined tomorrow by Magistrate having competent jurisdiction?" the SGI, according to LiveLaw, asked.
Zubair's Petition
Zubair’s petition, filed in the Delhi High Court on Thursday, seeks inter-alia the quashing and setting aside of the order of the chief metropolitan magistrate, Patiala House Court, granting his four-day police custody. It further goes on to contend, among other things:
The ingredients of the offences under Sections 153A and 295A IPC are prima facie not made out in the FIR
“The entire controversy in the present case revolves around this hotel’s name plate, which is a part of the original film ('Kisise na Kehna') and has not been created or edited by the Petitioner.”
“It is pertinent that the image tweeted has been in the public domain since 1983 when the film was released, and for the last 39 years no offence was caused by its 7 publication.”
“…the registration of the FIR, the hurried arrest and the application for police custody are meant to facilitate a fishing and roving inquiry against the Petitioner and his work as a journalist and fact checker, which is impermissible in law.”
(With inputs from LiveLaw.)
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