In both the Delhi and Uttar Pradesh cases where Alt News co-founder Mohammed Zubair was arrested, the police have after registering the FIR told courts that they have “removed” and “added” certain Sections in the cases.
On June 28, the Delhi police told a local court they had “removed” Section 295 of the Indian Penal Code and “added” Section 295A (deliberate act to outrage religious feelings). This submission came as Mr. Zubair’s lawyer pointed out that a tweet could not possibly fall under the ambit of Section 295 (injuring or defiling a place of worship). At the next remand hearing on July 2, the Delhi police told the court they were also “adding” Sections 120B (criminal conspiracy), 201 (destruction of evidence) of the IPC and Section 35 of the Foreign Contributions (Regulations) Act (FCRA).
Similarly, after having registered the FIR on June 1, the Sitapur police on July 7 informed a court that they were “adding” Section 153A and in the July 8 Supreme Court hearing, informed that it had “removed” Section 67 of the IT Act from the case. This was shortly after senior advocate Colin Gonsalves questioned how the tweet in question could fall under the ambit of Section 67 of IT Act (punishment for publishing or transmitting obscene material electronically).
This practice has continued routinely across different cases despite there being no provision in the Code of Criminal Procedure that allows the investigating agency to amend, alter, add to or remove any part of the FIR (First Information Report).
Many High Courts have ruled that altering an FIR is not permissible, precisely because it is the First Information Report and will not remain so if altered. They have also noted that the police are free to continue their investigation and remove or add penal provisions if their investigation revealed the need for it at the stage of filing the chargesheet.
During the July 2 hearing, senior public prosecutor Atul Srivastava had also said, “We can add or subtract any Section till we file the chargesheet.”
A public prosecutor with the government of NCT of Delhi explained that in between the registration of an FIR and the filing of the chargesheet, “When the police say they are ‘adding’ Sections, they mean they found something that required them to probe possible offences 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 record what they find and how it led them to expand the probe to other sections of IPC in the case diary and inform the court about it.” He added that the police or investigating agency has the full authority to freely proceed with their investigation in this manner if it finds the evidence to expand its probe.
Mr. Ranga said this practice is commonly seen in cases where an assault victim dies after registration of the FIR, forcing the police to alter the FIR from Section 307 (attempt to murder) to Section 302 (murder) of the IPC.
In the Delhi Police case against Mr. Zubair, the FIR was registered for a 2018 tweet under Sections 153A (promoting enmity between different groups on grounds of race, religion, caste, etc.) and 295 (injuring or defiling place of worship) of the IPC. As of the latest submissions in court, Sec 295 is no longer present, and the police are claiming they have material warranting a probe under Sections 295A, 201 (destruction of evidence) and 120B (criminal conspiracy) of the IPC, and Section 35 of the FCRA as well.
In the Uttar Pradesh case, Section 67 of the IT Act is now gone and the police are claiming they have material to probe under Section 153A.
These sections may or may not appear in the final report/chargesheet, depending on where the police probe leads.
But the Magistrates concerned in Delhi and Uttar Pradesh have denied bail to Mr. Zubair, considering the gravity of these “added” Sections among other aspects.
In a 2007 judgment, the Gujarat High Court has held that the initial report/intimation of adding Sections is “not required to be heard and the learned Magistrate is not required to consider any other things till the final report (chargesheet) is submitted after conclusion of the investigation… and only at that stage, the concerned learned Magistrate has to apply his mind as to whether to accept the said report or not.”
Advocate-on-record Shwetank Sailakwal, a criminal defence lawyer practising in Delhi and Uttar Pradesh, said, “We know that the case diary has been called the personal property of the police and what they record in that 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, to file an application before the Magistrate seeking the case diary, by 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 investigation and trial — but for both these instances, the accused must have solid evidence with very particular material to show that the probe is biased.”
He added that in all other circumstances, the right of the investigating agency to continue their probe trumps the right of the accused at this stage of the process.
