The law allows police to 'amend' an FIR in a certain sense, ie, to change the offences that they believe were committed by accused, amid new findings at the stage of investigation.
For example, if a case of attempt to murder (Section 307 of the Indian Penal Code) has been registered against person X for making a brutal attack on person Y, and person Y dies after the FIR has been filed, the police can go on to charge X with murder (Section 302 IPC).
Similarly, during investigation of physical assault, if findings point towards rape, the police investigation can be updated to involve sections of the IPC dealing with rape.
The FIR – the First Information Report – is itself not exactly modified in these circumstances, but the investigation which began with the FIR is modified, which is reflected in the case diary and subsequent reports to the courts including the eventual chargesheet.
But what happens when cases are first registered under peculiarly, almost facetiously, disconnected provisions, and the police then, as an afterthought and after securing initial remand of the accused, decides to change them to avoid having their case thrown out by a more senior court?
The Altered Sections
In a case registered in Uttar Pradesh, Mohammad Zubair has been booked for using the term 'hate-mongers' with regard to certain famous saffron men in a tweet.
The FIR in this case had originally been filed under Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code and Section 67 of the Information Technology (IT) Act (punishment for publishing or transmitting obscene material in electronic form).
However, Section 67 of the IT Act penalises publishing or transmitting “in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” (emphasis added)
It is incredibly difficult to see how Zubair’s tweet – that these people are (in his opinion) hate-mongers – was lascivious or tending to deprave those who read it.
Besides, as the wording of the IT Act suggests, this section is attracted in cases such as those of obscenity or pornography or, given we're talking about India here, when somebody thinks the web-show they watch during dinner-time is too overtly sexual in nature.
So naturally, that section was hastily dropped by the UP Police, and the Solicitor General of India (appearing for the state of Uttar Pradesh) informed the Supreme Court on Friday that Zubair was instead being investigated for violation of Section 153A of the IPC (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc).
But this isn’t the only case of 'section-fixing' against Zubair. In the case filed in Delhi immediately after this “hate-mongers” case, the fact-checker was booked for yet another tweet (from 2018).
In this tweet he had shared an image from a Hindi film that showed the signboard of a hotel visibly changed from 'Honeymoon Hotel' to 'Hanuman Hotel.' The image was accompanied by the text: “BEFORE 2014: Honeymoon Hotel. After 2014: Hanuman Hotel”.
Despite the fact that the image was from an old movie — that, by the way, has still not been banned in India — and had been used by several Twitter users over the years, Zubair was originally booked under Sections 153A (promoting enmity between different groups) and 295 of the IPC.
Section 295 deals with injuring or defiling place of worship. Given that no place of worship was actually defiled by Zubair, the police then claimed that they were investigating the fact-checker for violating Section 295A instead.
The Quint has been able to glean this change in sections as the original FIR copy (accessed by us) clearly books him under Section 295 IPC, while the Patiala House Court order remanding him to judicial custody indicates Zubair is alleged to have committed an offence under 295A IPC.
And it doesn't just stop there. Charges under Section 120B (criminal conspiracy) and 201 (causing disappearance of evidence of offence) of Indian Penal Code and Section 35 of Foreign Contribution (Regulation) Act have also since been added against Zubair in this investigation connected to the ‘Honeymoon Hotel’ tweet.)
Is This Normal? What Does it Suggest?
But is this normal? Can the police first book an accused under entirely unrelated sections and then go around correcting their mistake, while the accused languishes in custody as a consequence of the sum-total of the charges, allegations and aspersions against him?
The Quint reached out to senior advocate Mihir Desai, who said:
“The Supreme Court has always said that the FIR is not an encyclopedia, and as you investigate you might come across some new offences, so you can always add them. So that logic is there.”
However, Desai added: “but whether this logic is applied properly in this case is a different matter.”
Noting that there are many cases of abuse of this logic, Desai further said that "in the present case it is obvious that there is an abuse.”
To further understand Desai’s point, we may also look at a few other arguments that point towards a disregard (if not abuse) of the law that may have potentially taken place in order to keep Zubair behind bars:
In the UP case, Zubair used the term ‘hatemongers’ against people who already have hate-speech related FIRs against them, but he was still being investigated under Section 295A - a cognizable, non bailable offence.
Section 153A of the IPC applies when there is an attempt to create disharmony between two communities. In both tweets for which he has been booked in separate FIRs, it remains unclear which are the two communities Zubair may have potentially incited enmity between. Let us recall, that Zubair referred to select hate-speech accused individuals (and not an entire faith) as ‘hatemongers’ and his ‘Honeymoon Hotel’ tweet does not mention any religious community at all
In Ramesh vs Union of India (1988), the Supreme Court had categorically stated that the standard of ordinary reasonable man (“the man on the top of the Clapham omnibus”) should be applied while judging the effect of exhibition of a film or a book. Logic states that the same may apply in case of tweets. The Supreme Court, has in other cases too, cautioned against paying heed in such cases to “weak and vacillating minds…who scent danger in every hostile point of view”
In Arnesh Kumar vs State of Bihar (2014), the Supreme Court had emphasised that arrests should be an exception, in cases where maximum punishment is less than seven years of imprisonment
Finally, Zubair’s right to freedom of expression is guaranteed by Article 19(1)(a) of the Constitution of India. Article 19(2) allows for reasonable restriction to be imposed on the same but only in limited circumstances. The only relevant ground under Article 19(2) in this case is 'public order'. It is unclear how public order is threatened by these tweets – and indeed there has been no actual evidence of this till now. The police may yet be able to prove that some such threat exists, but until they do so, it makes little sense to keep Zubair behind bars
Keeping all this in mind, the manner in which sections have been hastily slapped against Zubair, and then altered because they actually make little legal sense, cannot but lead to questioning these entire cases against Zubair. At the very least, they indicate a gross lack of application of mind (which is itself concerning), and at worst, give serious cause to question the intent behind the arrests.
However, we leave this to our constitutional courts to consider and decide.
So far, though, Zubair has only been granted a five-day interim bail in the ‘hate-mongers’ case, on conditions including that he will not tweet, but he still remains in custody in the ‘Honeymoon Hotel’ case. On Saturday, the Lakhimpur Kheri police issued a fresh warrant against him in a new case pertaining to his tweets, registered (again) under Section 153A of the IPC.
Whether that investigation will also have to be amended so that it passes some legal muster, remains to be seen.