The Delhi High Court on Friday issued notice to the Delhi Police on a plea by Alt News co-founder Mohammed Zubair's plea challenging a Patiala House Court order remanding him to police custody.
Justice Sanjeev Narula asked the Delhi Police to file a counter-affidavit within two weeks to the plea which also took objection to the Patiala House court order permitting examination and seizure of laptop of Zubair.
"Considering the submissions, a response is called for. Let the counter- affidavit be filed in two weeks. Rejoinder to be filed one week thereafter," the Court directed.
The Court also directed the Delhi Police to supply copies of remand application to Zubair.
The single-judge also clarified that the magistrate will decide the issue without being prejudiced by the High Court order.
The matter will be heard again on July 27.
Zubair was remanded to four days' policy custody by the Patiala House Court on June 28.
He was arrested by the Delhi Police on June 27 and presented before duty magistrate who granted a day's custody of Zubair to the Police.
Subsequently, he was remanded to police custody for four days by Chief Metropolitan Magistrate Snigdha Sarvaria.
Police has charged Zubair under Sections 153A (promoting enmity between religious groups) and 295 (injuring or defiling place of worship, with intent to insult the religion of any class) of the Indian Penal Code (IPC).
The case against Zubair is based on a complaint from a Twitter handle called Hanuman Bhakt alleging that Zubair had tweeted a questionable image with the intention to deliberately insult the God of a particular religion.
“Such tweets were getting retweeted and it appeared that there is a brigade of social media entities, who indulge in insult mongering thereby leading to a possible ramification on communal harmony and is overall against the maintenance of public tranquility,” a statement by Delhi Police said.
Advocate Vrinda Grover, appearing for Zubair today, pointed out that the offending tweet was from 2018.
"The so called offending tweet is date March 2018. It is barred by limitation. No court can take cognisance of this case. What is the purpose of spending public resources," she asked.
She then questioned the legality of seizure of laptop and mobile phone of Zubair.
"The question is the order legal. There is personal liberty at stake. The question is does a case of this nature warrant remand, could my laptop and mobile be directed to be seized. Our issue is with respect to seizure of electronic devices. This has now become a pattern," she contended.
The tweet was from a mobile phone of Zubair which was lost, she pointed out.
"They are cyber crime experts. The tweet shows it is from phone. They are asking for laptop. I am journalist. Please see what Supreme Court has said in Pegasus case. My old phone is lost despite that my present phone has been seized," she argued.
Grover submitted that the Police cannot go beyond the scope of the FIR.
"They cannot go beyond the remit of the FIR. The remand order is plunging a dagger in the heart of privacy. The tweet was from phone. Why did they seek my laptop. The remand order has grabted everything they wanted. It is facilitating a phishing and roving inquiry," she said.
Regarding the merits of the case itself, she pointed out that the photograph in the tweet which allegedly hurt religious sentiments have been put out by others too.
In this regard, she cited an Indian Express Article which had the very same photo.
"The mala fide is writ large," she said.
Grover also claimed that the notice under Section 41A of the Code of Criminal Procedure (CrPC) was complied with only on paper.
"I was summoned in an unrelated matter through 41A notice. In that matter I am under protection. I was lured. This is police acting like this. At 5:30 pm I was served Section 41A notice in this (present) FIR. This was a sham paper compliance. Within half an hour arrest was made and they said I am not cooperating," Grover contended.
She then proceeded to state the twitter handle which had first highlighted Zubair's tweet has just one follower.
"The tweet by the complainant's handle against me was the first tweet. He has one follower and the Delhi Police picked it. This requires some extraordinary twitter monitoring," she said.
The Court, however, said that there were arguments on merits and the trial court can decide the same since the remand was coming to an end tomorrow.
"This is all on the merits. Now that remand is coming to end tomorrow, that is reason I said the trial court will decide it," the judge said.
"Then please issue notice and all search and seizure will be subject to outcome of this petition," Grover requested.
Solicitor General (SG) Tushar Mehta appearing for the Delhi Police asked why there was anxiety about seizure of laptop.
"So far as laptop is concerned I don't understand what is anxiety," the SG said.
"It is my right to privacy. I will not grant access to my devices to the state. It is provocative," Grover responded.
The SG maintained that Police is not acting in a partisan manner.
"FIR is only initiation of proceedings. The investigating authorities will investigate and see if there is any serious offence," Mehta said.
He also said that the present case is not with respect to one tweet alone.
"In the present matter there not only one tweet. We have said 'such tweets'," he submitted.
"Will you be asking for further remand," asked Justice Narula.
"We do not know what will be the status of investigation by tonight. It would be presumptuous of me to make any statement in that regard," the SG replied.
The Court then said that the case warrants issuance of notice and proceeded to seek response from the Police.