Criminal justice machinery relentlessly employed against Zubair; process itself has become a punishment: SC

Supreme Court: In a big relief to Alt News Co-founder and fact checker Mohammed Zubair, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and AS Bopanna, JJ has directed that Zubair will continue to remain enlarged on bail, subject to his filing a personal release bond in the amount of Rs 20,000 with respect to 6 FIRs filed against him at various places. The Court observed that,

“The criminal law and its processes ought not to be instrumentalized as a tool of harassment.”

Most of the FIRs implicate offences (Sections 153A, 295A and 298 IPC and Section 67 IT Act) which are punishable for up to three years’ imprisonment. It has been alleged that Zubair has hurt religious feelings through his tweets. It is also important note that certain dormant FIRs from 2021 were activated as certain new FIRs were registered.

The 6 FIRs filed in Ghaziabad, Chandauli, Lakhimpur, Sitapur, Hathras have also been transferred from the Uttar Pradesh Police to the Special Cell of the Delhi Police, thereby disbanding the SIT formed by the Director General of Police, Uttar Pradesh on 10 July 2022. If any other related FIR is filed against Zubair then the same will also be transferred to the Special Cell of the Delhi Police and Zubair shall be entitled to the order of interim bail.

As far as the FIR registered at Muzaffarnagar is concerned wherein the charge-sheet under Section 173 of the Code of Criminal Procedure 1973 has been filed, the Court transferred the proceedings to the Chief Judicial Magistrate, Patiala House Courts and directed the matter is to be taken up from the stage that has reached before the earlier Court. The petitioner has been enlarged on bail. The order enlarging the petitioner on bail shall continue to remain in force.

Criminal Justice system being used as a tool of harassment

Unhappy with the acts of the Police in the case, the Court went on to observed that the machinery of criminal justice has been relentlessly employed against Zubair.

Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned above, the petitioner was subjected to multiple investigations across the country. Consequently, he would be required to hire multiple advocates across districts, file multiple applications for bail, travel to multiple districts spanning two states for the purposes of investigation, and defend himself before multiple courts, all with respect to substantially the same alleged cause of action.”

Resultantly, the Court noticed that Zubair has been trapped in a vicious cycle of the criminal process where the process has itself become the punishment.

The Court, hence, observed that,

“The Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power.”

Stating that the Police Officers are expected to apply their mind to the case before them, the Court said that the criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the CrPC as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual.

Gag order directing Zubair not to tweet unwarranted

When the State of Uttar Pradesh attempted to persuade this Court that the petitioner must be barred from tweeting when he is on bail, the Court held that merely because the complaints filed against the petitioner arise from posts that were made by him on a social media platform, a blanket anticipatory order preventing him from tweeting cannot be made.

“A blanket order directing the petitioner to not express his opinion – an opinion that he is rightfully entitled to hold as an active participating citizen – would be disproportionate to the purpose of imposing conditions on bail. The imposition of such a condition would tantamount to a gag order against the petitioner. Gag orders have a chilling effect on the freedom of speech.”

Noticing that Zubair is a journalist who is the co-founder of a fact checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos, the Court held that passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession.

The observations came after it was noted that the bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.

[Mohammed Zubair v. State of NCT of Delhi, 2022 SCC OnLine SC 897, order dated 20.07.2022]


For Petitioner(s): Advocates Vrinda Grover, Soutik Banerjee, Mannat Tipnis, Devika Tulsiani and Aakarsh Kamra

For Respondent(s): AAG Garima Prashad, Advocates Adarsh Upadhyay, Harsh Mishra, Aman Pathak

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