Offence of promoting enmity largely made out against Mohammed Zubair: Allahabad High Court

While granting interim relief from arrest to Alt News journalist Mohammed Zubair, the Allahabad High Court observed that, from a plain reading of the FIR, the offence of promoting enmity between different groups under Section 196 of the Bharatiya Nyaya Sanhita (BNS) appeared to be largely made out against him..However, the Court said that it remains to be seen whether the FIR allegations would constitute an offence under Section 152 BNS which penalises acts of endangering the sovereignty and integrity of nation."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," the Court observed.Zubair has been booked by the Uttar Pradesh Police primarily under these two provisions for his tweet which alleged that a speech delivered by Ghaziabad Dasna Devi Temple priest Yati Narsinghanand was "derogatory and hateful".A Bench of Justice Siddhartha Varma and Justice Nalin Srivastava was considering his plea for quashing the case against him"Matter thus requires consideration," the Court noted while posting the matter for hearing on January 6, 2025.The Court while granting him interim protection from arrest also directed him to surrender his passport and not travel outside the country..The FIR was lodged consequent to a complaint filed by supporters of Yati Narsinghanand, the priest of Ghaziabad's Dasna Devi Temple over a tweet Zubair had posted on X.On September 29, Narsinghanand, who has been charged with hate speech on previous occasions, delivered a public speech in which he allegedly made remarks against Prophet Muhammad. Zubair posted a tweet on X calling the speech "derogatory and hateful".Several first information reports (FIRs) were then registered against Narsinghanand in Uttar Pradesh, Maharashtra and Telangana for inciting communal hatred and hurting religious sentiments. His aides claimed that the was taken away by the cops.Subsequently, there were protests at the Dasna Devi Temple.The FIR against Zubair stemmed from a complaint filed by Udita Tyagi, General Secretary of the Yati Narsinghanand Saraswati Foundation.Tyagi alleged that on October 3, Zubair shared an old video clip of Narsinghanand with the intent to incite violence against him.A complaint was lodged by Tyagi blaming Zubair, Arshad Madani and Asaduddin Owaisi for violent protests at Dasna Devi Mandi.The Ghaziabad Police then charged Zubair under Sections 196 (promoting enmity on religious grounds), 228 (fabricating false evidence), 299 (outraging religious feelings by insulting religion or religious beliefs), 356(3) (defamation), and 351(2) (criminal intimidation) of the BNS.Subsequently, the offence under Section 152 of BNS was also added.Zubair then moved the High Court seeking quashing of the FIR and also for protection from arrest..The counsel appearing for Zubair stated that there was no attempt to excite secession or armed rebellion or subversive activities. He submitted that there was also no effort to encourage feelings of separatist activities or to endanger sovereignty or unity and integrity of India. It was stated that as per the explanation to Section 152 of BNS, there were comments in his tweets of disapprobation of the administration in not taking action against Yati Narsinghanand despite FIRs against him.As per the order, Zubair's counsel also submitted that the tweets did not endanger sovereignty or unity and integrity of the country. It was his argument 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 submitted that at the most, the averments in the FIR might lead one to infer that an offence under section 196 BNS was made out..Additional Advocate General (AAG), appearing for the State, argued that a "lie" from someone claiming to be a renowned fact-checker could incite people towards separatist activities, endangering the country’s sovereignty, unity, and integrity.The AAG argued that the tweets, viewed and forwarded by lakhs, promoted enmity between religious groups, disrupting harmony. He asserted that the selective nature of the posts further fueled disharmony, leading to the October 4 attack on Dasna Devi Temple, where Yati Narsinghanand narrowly escaped..However, as affidavits between the parties have not yet been exchanged and the AAG was yet to clarify what constitutes "separatist activity," the Court granted the State three weeks to file a detailed counter affidavit. The counsel for the complainant may also file a counter affidavit within this period, the Court added.Considering, Zubair’s criminal antecedents and the Supreme Court’s order in Mohammed Zubair vs. State of NCT of Delhi & Ors dated July 20, 2022, granting him bail in several cases, the Court directed that Zubair shall not be arrested until the next date of hearing"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," the Court directed.Senior Advocate Dileep Kumar along with Advocates Devaang Salva, Rajrshi Gupta and Tanmay Sadh appeared for Zubair.Additional Advocate General Manish Goyal and advocates Pankaj Saxena, AK Sand and Kapil Tyagi appeared for the respondents..[Read Order]