Court No.

- 45

Case :- CRIMINAL MISC. WRIT PETITION No. - 21016 of

2024

Petitioner :- Mohammed Zubair

Respondent :- State Of Uttar Pradesh And 3 Others
Counsel for Petitioner :- Devaang Savla,Rajrshi Gupta,Tanmay
Sadh
Counsel for Respondent :- Kapil Tyagi,G.A.

Hon'ble Siddhartha Varma,J.

Hon'ble Nalin Kumar Srivastava,J.

1. Heard Sri Dileep Kumar, learned Senior Advocate assisted by

Sri Tanmay Sadh, learned counsel for the petitioner; Sri Manish
Goyal, learned Additional Advocate General assisted by Sri Pankaj
Saxena, Sri A.K. Sand learned, Government Advocate, Sri Kapil
Tyagi, learned counsel for the informant as also Sri Aditya
Srinivasan who appeared through Video Conference.

2. Short counter affidavit has been filed by the State. It may be

kept on record.

3. Learned counsel for the petitioner has submitted that initially the
FIR was got lodged under sections 196, 228, 299, 356(3) and
351(2) of the Bharatiya Nyaya Sanhita, 2023. However,
subsequently during investigation, the police had started off also
with the investigation under section 152 BNS and section 66 of the
Information Technology Act. Learned counsel for the petitioner
has submitted that if the FIR is perused, it appears that the first
informant was aggrieved by four tweets which the petitioner had
made. They were as follows :-

(i) dated October 3, 2024 at 9.30 PM;

(ii) dated October 4, 2024;

(iii) dated October 5, 2024 at 11 hours and 8 minutes; and

(iv) dated October 5, 2024 at 12.38 PM.

4. It has thereafter been submitted, relying upon the FIR, that

because of the tweet dated 4.10.2024, in the night, at Dasna Devi
Temple, thousands of fundamentalists had attacked the temple. In
the FIR thereafter it has been stated that certain small clips were
also again thereafter tweeted. The FIR further states that on
4.10.2024, the Priest Yati Narsinghanand was present in the temple
and he had a narrow escape when the crowd had attacked the
temple.

5. Learned counsel for the petitioner has submitted that if the

tweets are seen, it becomes clear that they were only tweets which
have stated that despite there being FIRs against the priest Yati
Narsinghanand, the police had not taken any action. The material
which had resulted in the lodging of the FIRs against the priest
were also uploaded in the tweets. Learned counsel for the
petitioner states that in fact there was no attempt to excite
secession or armed rebellion or subversive activities. He submits
that there was also no effort to encourage feelings of separatist
activities or to endanger sovereignty or unity and integrity of India.
He submits that there was in fact also no such attempt. Learned
counsel for the petitioner only stated that as per the explanation of
section 152 of BNS there were comments in his tweets of
disapprobation of the administration in not taking action against
the Priest despite FIRs against him. Learned counsel for the
petitioner thereafter has drawn the attention of the Court to the
supplementary affidavit which has been filed and it has been stated
that for the speeches which were delivered by the Priest on
29.9.2024, the U.P. Police had filed FIRs and as per the FIRs
lodged, the case was clear that because of the speech given by the
Priest on 29.9.2024, the crowd had collected at the temple on
4.10.2024. Learned counsel for the petitioner states that only to
create a counter case, the impugned FIR had been lodged. Learned
counsel for the petitioner states that in fact when because of earlier
tweets made by the petitioner, certain FIRs were lodged and the
Supreme Court had granted bail to the petitioner, then during the
hearing of the bail applications in Writ Petition (Criminal)
No.279 of 2022 (Mohammed Zubair vs. State of NCT of Delhi
& Ors.) dated 20.7.2022, when the State of Uttar Pradesh had
argued before the Supreme Court that conditions be imposed
against the petitioner from tweeting any further, then the Supreme
Court had held that 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. Since learned
counsel for the petitioner heavily relied upon paragraph 30 of the
said judgment, the same is being reproduced here as under :-

"30. 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.
According to the petitioner, he 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. 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."

6. Learned counsel for the petitioner has also submitted that

definitely the tweets of the petitioner did not amount to secession,
armed rebellion or any subversive actitivy. He also submits that the
tweets also did not endanger sovereignty or unity and integrity of
the country. He submits that one might while explaining the words
"encourages feelings of separatist activities" try to conclude that
the tweets were bringing in separation between the two religions
but he submits that as per the Webster's Dictionary, a "separatist"
is someone who is in favour of separation or a member of political
or religious minority favouring secession. He has also taken
recourse to another dictionary which has defined "separatist" as
follows :

"a person who supports the separation of a particular group of people from a
larger body on the basis of ethnicity, religion or gender."

7. He submits that at the most the averments in the FIR might lead
one to infer that an offence under section 196 BNS was made out.

8. Learned Additional Advocate General Sri Manish Goyal,

however, has submitted that in the writ petition in paragraph
nos.11 and 12, the petitioner had claimed to be an organization
which claims itself to be a world renowned fact checking/finding
body. In paragraph nos.12, 17, and 24, learned Additional
Advocate General states, the petitioner himself had stated that the
Priest had been implicated in any number of cases and that he had
also been arrested and bailed out. Learned Additional Advocate
General has, therefore, stated that the impact of a "lie" which
comes from a person who claims to be a world renowned fact
checker results in the excitement of people to the extent that they
start getting into separatist activities and in the result the
sovereignty, unity and integrity of the country gets endangered.
Learned Additional Advocate General has, therefore, submitted
that when the thread of tweets was seen by lakhs of people and
they were also forwarding those tweets, then it was promoting
enmity between different groups of religion and, therefore,
everything was becoming prejudicial to the maintenance of
harmony. Learned Additional Advocate General further states that
since the posts were selective, they even more led to the
disharmony amongst two religious groups and, therefore, submits
that this was the reason because of which any number of unruly
people on 4.10.2024 attacked on the Dasna Devi Temple where the
Priest Yati Narsinghanand had a narrow escape.

9. From the arguments which have been made, we are tentatively

of the view that even though from the reading of the FIR one could
make out that the offence under section 196 BNS, upto a large
extent was being made out. Whether, however, from the
allegations made in the FIR, any offence under section 152 BNS
was being made out wherein the acts of the petitioner would excite
people to commit offences of secession, armed rebellion,
subversive activities or get encouraged to get feelings of separatist
activities is to be seen.

10. Matter thus requires consideration.

11. However, since the affidavits between the parties have yet not
been exchanged, and the learned Additional Advocate General has
yet to make submissions with regard to what would be "separatist
activity", we consider it appropriate to grant the State three weeks'
time to file a detailed counter affidavit. Learned counsel for the
informant may also file counter affidavit within the aforesaid
period.

12. We post this case for 06.01.2025 at 10.00 AM.

13. However, looking into the criminal antecedents of the

 petitioner and after looking into the order which has been passed
by the Supreme Court in Writ Petition (Criminal) No.279 of 2022
(Mohammed Zubair vs. State of NCT of Delhi & Ors.) on
20.7.2022 by which the petitioner therein had been granted bail in
many of the criminal cases against him, we consider that the
petitioner, till the next date of listing be not arrested. However, he
will cooperate in the investigation and since the learned counsel
for the petitioner has given his undertaking that he would not go
out of the country, we also provide that the petitioner shall not go
out of the country. He may surrender his passport with the
Commissioner of Police at Ghaziabad.

Order Date :- 20.12.2024

GS

(Nalin Kumar Srivastava, J.) (Siddhartha Varma, J.)

Digitally signed by :-
GAUTAM SONI
High Court of Judicature at Allahabad