SC gives Mohammad Zubair 5-day bail, but Delhi case will keep him in jail

New Delhi: The Supreme Court on Friday granted five-day interim bail to Alt News co-founder Mohammad Zubair with a restriction that he will not leave Sitapur, where he is facing criminal proceedings arising from an FIR for outraging religious sentiments and promoting enmity between different groups by describing Yati Narsinghanand Saraswati, Bajrang Muni and Anand Swaroop as hate mongers. The court, however, clarified that its interim bail order is with respect to the Sitapur FIR and has nothing to do with a separate case registered against the journalist in Delhi.

Granting interim bail to Mr Zubair in the case registered by Uttar Pradesh police, a vacation bench comprising Justices Indira Banerjee and J.K. Maheshwari also restrained Zubair from posting any fresh tweets on the issue before the top court.

The court further said that the order of the magistrate court remanding Mr Zubair to police custody be translated and furnished to the court along with the order rejecting the plea for bail by Mr Zubair.

The court in its order granting interim bail said, "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."

Recording solicitor general Tushar Mehta’s submission that Mr Zubair is in judicial custody in Delhi in connection with a different offence, the top court in its order said, "This court is not concerned at this stage with any FIR other than the FIR No. 0226 dated 1st June, 2022 lodged at PS Khairabad, District Sitapur, Uttar Pradesh which is the subject matter of these proceedings."

Having granted interim bail to Mr Zubair for five days, the court issued notice on his petition and posted the matter for further hearing on July 12 before an appropriate bench to be assigned by Chief Justice N.V. Ramana.

Appearing for the Uttar Pradesh government, Mr Mehta told the vacation bench that a grant of interim bail will not entitle him to be released as he is in the judicial custody of a Delhi court in connection with another case.

At this, the court made it clear that its order granting interim bail is only with respect to the case arising from an FIR registered in Sitapur on June 1 and not any other FIR. The court also made it clear that its order will not impede the investigation, seizure of evidence in the Sitapur case.

Appearing for Mr Zubair, senior lawyer Colin Gonsalves told the court that Mr Zubair is facing prosecution for outraging religious feelings and promoting enmity between different groups on grounds of religion, but ironically, the "hate mongers" are roaming free after being granted bail.

Mr Gonsalves made a slight of the Uttar Pradesh police for invoking Section 67 of the Information Technology Act that punishes a person for publishing or transmitting material containing sexually explicit acts and asked what Mr. Zubair's offence was. He asked where is the material that attracts this section of the statute relating to the IT Act?

Mr Mehta admitted that Section 67 of the IT Act was not violated and the investigating officer had already dropped it and replaced it with Section 153A (promoting enmity between different groups on grounds of religion) of the Indian Penal Code.

Opposing the plea by Mr Zubair seeking protection from arrest and quashing of the UP police FIR, the solicitor general told the court that the affidavit filed on Thursday (July 7) evening does not disclose that the Sitapur court had earlier in the day rejected his bail and sent him to police custody. Also, there was no mention of the Delhi case, where too his plea for bail was refused and he was sent to judicial custody.

The solicitor general also challenged the argument about the threat to Zubair’s life, citing that he is already in custody.

Mr Mehta said, "It is not about one tweet. Whether he is part of a syndicate, which is regularly posting such tweets with the intention to destabilise the country. There is something more than what meets the eye in this case. There are many facts suppressed and he says he runs a fact-checking website."

The solicitor general also said that financial transactions involving overseas entities are also being investigated. "There is some kind of money angle too. Whether donations from countries inimical to India have been received by them is under investigation," he said.

Mr. Mehta described Mr. Zubair as a "habitual offender." He said that one isolated tweet is not the offence; his overall conduct is being criminally investigated and he is a habitual offender.

Defending Mr Zubair, Mr Gonsalves said, "He is performing the role of pointing out hate speech and reporting it to police. It is not promoting enmity between religions, he is promoting secularism in fact. He is telling them to stop promoting enmity and stop hate speech."

He further told the court that no criminal case can be made out against Mr Zubair. "The foundation of this case is a tweet. Here, we seek a quashing of proceedings and questions of police or judicial custody are irrelevant," he added.