'Justice System Can't Sink Lower': Judges, Experts on Zubair's Bail Denial, Legal Lapses

A former Supreme Court judge, a high court judge and advocates have pointed out the glaring legal lapses in the case against the fact-checker and his incarceration.

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New Delhi: A former judge of the Supreme Court has told The Wire that it is “difficult for the criminal justice system to sink lower than this,” when asked about the saga on July 2 that involved a top police officer announcing the verdict on Mohammed Zubair’s bail hours before the court did.

On Saturday, a Delhi court refused bail to fact-checker and co-founder of AltNews, Mohammed Zubair. Zubair was arrested after Delhi Police responded to a tweet by an anonymous account which claimed that the journalist’s 2018 tweet – of a film still – had insulted him as a Hindu.

Chief Metropolitan Magistrate (CMM) at Patiala House Court, Snigdha Sarvaria, pronounced her order at 7 pm, some three hours after counsel assembled in her court room to hear the verdict. However, hours earlier, at around 2.30 pm, a number of media outlets and news agencies had already “reported” both her denial of bail and her decision remand Zubair to 14 days judicial custody.

In a statement flagging multiple concerns, Zubair’s counsel, advocate Soutik Banerjee told the press that he was shocked to see that sections of the media had reported the news and cited Delhi Police’s Deputy Commissioner of Police (DCP) K.P.S. Malhotra as their source.

“The judge has not sat down yet after the lunch break. But I am shocked to see that DCP K.P.S. Malhotra has leaked in the media that our bail has been rejected and 14 days judicial custody has been granted. I have learnt this by looking at Twitter posts of news channels who are running this news…there are certain law reporters who have run this news and they are all citing K.P.S. Malhotra as the source of this information. It is extremely scandalous and it speaks of the status of rule of law in our country today that even before the Judicial Magistrate has sat and pronounced the order, the police have leaked the order to the media. How K.P.S. Malhotra knows about the order is beyond me and calls for serious introspection about the status of rule of law,” Banerjee said.

Following Banerjee’s statement, DCP Malhotra backtracked and told reporters that he had a word with his Investigation Officer and claimed that he “misheard” something about the order due to noise, “and inadvertently the message was posted in the broadcast”. Legal experts were, of course, sceptical of this ‘explanation’:

When CMM Sarvaria pronounced the actual order, it turned out that the claims in the late afternoon reports were correct.

Since the pronouncement of the verdict, several legal experts have raised concerns about the turn of events, as well as the order.

‘What have we come to?’

Former Supreme Court judge, Justice Madan Lokur, for one, said, “It is difficult for our criminal justice system to sink lower than this.”

Pointing out how similar attempts were unsuccessful in the past, he added, “Did you know that all efforts were made to find out the decision that Justice Jag Mohan Lal Sinha was going to deliver in the case against Mrs Indira Gandhi’s election? But nobody was successful. Now, if reports are to be believed, a senior police officer announces the decision in a case before it is delivered. What have we come to?”

Justice K. Chandru, a former judge at the Madras high court, similarly observed that this was a record low for the judiciary.

He said, “The arrests of [activist] Teesta Setalvad and Mohammed Zubair are classic examples as to how the judiciary has stooped to such low levels [that] people have started losing faith in them.”

Chandru also referred to Justice Lokur’s interview with The Wire and noted, “As rightly said by Justice Lokur, the order against public defenders is a black day.”

In an additional piece on The Wire, Justice Lokur had questioned the apex court’s intentions, especially in the light of its comment, “All those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law,” which led to the Gujarat law enforcement lodging an FIR against Setalvad.

He added, “The latest is how brazenly the police can frame charges with the help of Sanghis and the indifference shown by the courts in its intervention. Fact checkers are punished with the help of fact twisters.”

‘From a single FIR to an general probe vehicle’

Police have notably also added three more sections to Zubair’s case: 201 (causing disappearance of evidence of offence, or giving false information to screen offender) and 120-B (punishment of criminal conspiracy) of the Indian Penal Code (IPC), and section 35 of the Foreign Contribution (Regulation) Act (FCRA), the latter paving way for the Enforcement Directorate to begin ‘investigating’ him.

“Aside from the fact that the offences are not even made out on the bare facts,” said senior advocate Nitya Ramakrishnan, the magistrate who granted the initial custody and then four days police remand should have known the case against Zubair had no future, given that the alleged offence is over four years old and does not carry a jail term of more than three years:

“Section 468 of the Code of Criminal Procedure (CrPC)  sets a limitation for a court taking cognisance of offences punishable with a maximum imprisonment term of three years or less. Since the tweet-related FIR against Zubair was of offences that carry only a maximum of three years or less, there is no purpose to this FIR, as a court is barred from taking cognisance of what it alleges.”

She added that was the Supreme Court in its Lalita Kumari judgment said that stale offences – i.e. incidents more than 6 months old – need a preliminary investigation before FIRs are lodged for them.

“Anyway, Section 41A CrPC is only one mode of enforcing the constitutional right to liberty – the principle being that arrest should not be made in offences carrying seven years or less. The duty to prevent such arrests or custody has been cast upon magistrates. The order of custody – first police custody, later this judicial custody – ignores the constitutional principle, its reiteration by the constitutional courts and of course the letter and spirit of the law.”

Advocate Shahrukh Alam, who practises at the Supreme Court, told The Wire that during an ongoing investigation pursuant to an FIR on specific sections, “it is only those relevant investigations that are important.”

Highlighting the risk of abuse of process, she said, “When a single and specific FIR is turned into a ‘general purpose investigation vehicle’, that’s an abuse of process. Worse still, if it’s used to make general purpose insinuations about ‘foreign donations’, which are not the subject of investigation at hand, such as it is, the allegations have no relevance.”

The court’s order, curiously, also ignores procedural violations and legal lapses, say experts.

Following his arrest on June 27, Zubair was remanded to four more days of police custody, after which the Patiala House CMM on Saturday ordered judicial custody.

Delhi-based advocate Bharat Chugh, who earlier served as a Metropolitan Magistrate, said, “I don’t think this was a case of judicial custody or any continued detention.”

Chugh said since the accused had already spent considerable time in police custody, “Anything that could have been recovered, should have been recovered by now.”

“Every accused is entitled to the presumption of innocence, the charges have to be proved later. If there’s nothing that the police wanted to take from him now on police remand, there’s no purpose for keeping him behind bars. This fact by itself could have entitled the accused to bail,” Chugh added.

‘Misuse’ of Section 41-A notice

In seeking bail for Zubair, his counsels had argued about the absence of ingredients required to make out the offences registered in the FIR, the fact that the tweet was a clip from a 1983 film, the procedural violations in his arrest and that he was actually being targeted for his work and religious background.

His lawyer, advocate Vrinda Grover drew attention to the fact that he was served notice under Section 41-A of the Code of Criminal Procedure (CrPC) “at the last minute”, and submitted that the procedures laid down in the landmark Arnesh Kumar judgment could not be “reduced to a paper formality”.

Advocate Chugh also pointed out that a notice under Section 41-A “is a very important one” since it “permits the accused to participate in the investigation”. He added, “It should be adequate notice, it should give a due opportunity to the accused to understand the allegations against them and to give a response to the allegations. I don’t think in this case, Section 41-A was actually followed in its spirit. It may have been followed in letter, but not in spirit and intent”.

Notably, when the police asked Zubair to hand over his mobile phone which he had been using in 2018, he informed the police that the said device had been lost. His lawyers also shared a copy of the Lost Article Report filed on March 23, 2021. However, ignoring this evidence, the CMM’s order said that “Nothing was found on record to show that any mobile phone of the accused was lost, although the said plea has been taken now in the present application.”

Copy of the police report filed by Mohammad Zubair in 2021 about the theft of his mobile phone. The Wire has redacted his address and telephone number.

“I understand that the accused also relies upon a police report to substantiate the fact that he lost an earlier phone. Now whether that’s a genuine police complaint or not, whether the phone was lost or not – all of these are matters of trial, this is not something on which somebody should be kept in continued detention,” Chugh said.

‘Even FCRA charges no ground for custody’

While the police may have filed an additional charge under the FCRA in order to strengthen what they knew was a weak case – indeed, the judge noted that the police had yet to complete their investigation into that as one of the grounds for rejecting Zubair’s bail plea – Ramakrishnan said that even this could not have constituted grounds for remanding him to judicial custody. “Section 35 of the FCRA is also only punishable with a maximum of five years,” which is less than the seven years mandated for arrest. “All this is, again, aside from the outrageous way in which the system has bent in each very direction to beat the spirit of the law.”

Sabah Gurmat is an independent journalist and law graduate based in Mumbai.

Note: This story has been updated with comments from Nitya Ramakrishnan and a tweet by Gautam Bhatia.

Note (November 4, 2022): A reference to The Wire’s Tek Fog findings has been edited out as the stories have now been removed from public view pending the outcome of an internal review, as one of its authors was part of the technical team involved in our now retracted Meta coverage. More details about the Meta stories may be seen here.