How offences are being ‘dropped’ and ‘added’ in cases against Zubair

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.” 

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 IPC 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). 

Multiple 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 State of NCT of Delhi explained that in between registration of FIR and filing of 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”.