In both the Delhi and Uttar Pradesh cases where Alt News co-founder Mohammad Zubair was arrested, the police, after registering the FIR, told the courts that they “deleted” and “added” certain sections in the cases.
On June 28, Delhi Police told a local court that they “deleted” section 295 of the Indian Penal Code and “added” section 295A (deliberate act to hurt religious feelings). The submission came after Mr. Zubair’s counsel pointed out that a tweet could not possibly fall within the purview of section 295 (injuring or profaning a place of worship). In the next remand hearing on July 2, the Delhi Police told the court that they would also “addition” sections 120B (criminal conspiracy), 201 (destruction of evidence) of the IPC and section 35 of the Foreign Contribution (Regulation) Act (FCRA). Were were ,
Similarly, after registering an FIR on 1 June, Sitapur police informed a court on 7 July that they were “adding” section 153A and reported in a Supreme Court hearing on 8 July that it had violated the IT Act. Section 67 has been “deleted”. from the case. Soon after senior advocate Colin Gonsalves questioned how the tweet could fall within the purview of Section 67 (punishment for publishing or transmitting obscene material electronically) of the IT Act.
This practice continues regularly in various cases despite there being no provision in the Criminal Procedure Code that allows the investigating agency to amend, change, add or delete any part of the FIR (First Information Report).
Several High Courts have ruled that change in FIR is not permissible, precisely because it is a First Information Report and will not be so if it is modified. They have also noted that the police are free to continue with their investigation and remove or add penal provisions if their investigation finds the need for the same at the stage of filing the charge sheet.
During the hearing on July 2, Senior Public Prosecutor Atul Srivastava had also said, “We can add or subtract any section till we file the charge sheet.”
A public prosecutor for the Government of NCT of Delhi pointed out that between the filing of the FIR and the filing of the charge sheet, “when the police say they are adding sections, they mean that they have found something that allows them to investigate possible crimes. need to. under that section – but they can only ‘add’ it while filing the chargesheet.
Pankaj Ranga, an additional public prosecutor, said, “In these circumstances, the police records what they found and how they expanded the investigation to other sections of the IPC in the case diary and informed the court about it.” He said that if the police or the investigating agency finds evidence to expand its investigation, it has every right to proceed its investigation independently in this way.
Mr Ranga said that this practice is commonly observed in cases where an assault victim dies after registering an FIR, the police have to shift the FIR from Section 307 (attempt to murder) to Section 302 (murder) of the IPC. forced to change.
In the Delhi Police’s case against Mr. Zubair, according to a 2018 tweet under sections 153A (promoting enmity between different groups on grounds of caste, religion, caste, etc.) and 295 (causing hurt or profanity to a place of worship) FIR was registered for IPC. As per the latest submissions in the court, Section 295 no longer exists, and the police are claiming that they have sections 295A, 201 (destruction of evidence) and 120B (criminal conspiracy) of the Indian Penal Code and sections 35 to investigate. Required material. FCRA also.
In the Uttar Pradesh case, now Section 67 of the IT Act has lapsed and the police are claiming that they have material for investigation under Section 153A.
Depending on where the police leads the investigation, these sections may or may not be included in the final report/chargesheet.
But the concerned magistrates in Delhi and Uttar Pradesh have refused to grant bail to Mr. Zubair given the gravity of these “additional” sections, among other aspects.
In a 2007 judgment, the Gujarat High Court has held that the preliminary report/intimation adding section “needs not to be heard and the learned magistrate is required to consider any other things till the final report (chargesheet) is presented after the findings”. There is no need of inquiry… and only at that stage, the learned Magistrate concerned shall have to make up his mind whether the said report should be accepted or not.”
Advocate-on-record Shwetank Sailakwal, a criminal defense lawyer practicing in Delhi and Uttar Pradesh, said, “We know that the case diary is said to be the private property of the police and what they record in it is the same. is what they claim to have found. in their investigation.”
Mr Sailakwal said that there are two remedies available to the accused in these situations: “One, filing an application before the magistrate seeking a case diary, alleging that the investigation is biased against you; And the other is to approach the High Court, arguing that your right under Article 21 is being violated by being denied a free trial and trial – but for both these instances, the accused has very special material There should be solid evidence to show that the investigation is biased.”
He said that in all other circumstances, the authority of the investigating agency to continue its investigation outweighs the authority of the accused at this stage of the process.