9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (1) TMI 1971 - HC - Indian LawsFreedom of Press - Refusal to remand the accused who was produced after the arrest by the petitioner police - publication of fake / derogatory news about His Excellency the Governor of Tamil Nadu - intent to prevent the Governor from exercising his lawful powers and duties, or not - offence under Section 124 of IPC - mandatory procedure followed by police while arresting the respondent, or not - proper application of mind, regarding the materials available on record while rejecting the remand of the respondent, or not - entitlement to 3rd party to participate in Judicial proceedings - extraneous consideration while deciding the remand of the respondent - sufficient reasons, for rejection of remand, given or not. Whether the Police followed the mandatory procedure while arresting the respondent before producing him before the learned Magistrate? - HELD THAT - On a prima facie consideration of the materials available on record, this Court is not satisfied with the manner in which the arrest has taken place in this case. The arrest intimation form given to the respondent does not even reveal the reasons for the arrest, which is a very fundamental requirement before a person is arrested in a case. The order of the Court below shows that the gist of the offence alleged to have been committed by the accused in the publication of Nakkeran was read out to the accused in the open Court. This was the first time the respondent came to know the reason for his arrest. If the arrest intimation form does not even reveal which police station is involved in the process of arrest, it will be difficult to even fix the jurisdiction of the Court which has to consider the remand of the accused. The arrest intimation form does not contain these fundamental particulars about the police station involved and that is the reason why, the Court below has stated in the order that the very jurisdiction of the court is not clear since, no police station has been mentioned in the arrest intimation form. Whether a learned Magistrate had properly applied his mind regarding the materials available on record while rejecting the remand of the respondent? - Whether the learned Judicial Magistrate has given sufficient reasons in the impugned order while rejecting the remand of the respondent? - HELD THAT - In order to satisfy the requirements of the word overawe , there must be something more than the creation of an apprehension, alarm or even perhaps fear. On a prima facie consideration of the allegations made in the complaint, this Court is of the considered view that a lot of intellectual debate is required in this case in order to come to a conclusion as to whether a publication by itself can attract the provisions of Section 124 of IPC. Section 124 of IPC has the ingredients similar to Section 353 of IPC. The latter is a generic version of Section 124 of IPC applying to public servants - While such a fundamental question as to whether an offence under Section 124 of IPC looms large, the petitioner police should not have resorted to arrest on 09.10.2018, the very next day after registering the FIR. The learned Magistrate was therefore right in stating that there is no sufficient material to justify the remand of the respondent. In this case, the publication is said to have been made from April to September 2018. The petitioner police is not able to demonstrate as to how these publications are preventing His Excellency the Governor of Tamil Nadu from exercising his lawful powers and duties and in what manner it has overawed the Governor. Except the ipse dixit statement made in the complaint, no other material was available with the police in order to seek for the remand of the respondent. Therefore, the Court below was right in rejecting the remand on the ground of in sufficient materials - the learned Magistrate apart from considering the irregularities committed by the police at the time of arrest of the respondent, has also given sufficient reasons while rejecting the remand of the respondent. Whether a 3rd party is entitled to make his submissions before a Court of law and how far the Court can entertain a 3rd party to participate in Judicial proceedings? - Whether considering the submissions made by the 3rd party in this case will amount to extraneous consideration while deciding the remand of the respondent? - HELD THAT - It is clear from the provision of Section 32 of the Advocates Act, that the Court has the power to permit any person not enrolled as an advocate to put forth his submissions before a Court whenever called for by the Court. It is clear from the judgment in HARISHANKAR RASTOGI VERSUS GIRDHARI SHARMA AND ANR. 1978 (3) TMI 213 - SUPREME COURT that with the prior permission of the Court, the Court can permit any person to speak in the Court. In this case, the Court was dealing with a very peculiar case where a publication has been made a subject matter of an offence under Section 124 of IPC, which is unprecedented and which has come up for the first time before a Court. Therefore, the learned Magistrate wanted to get the views of a reputed and senior journalist as to whether there are any such instances in the past. This query was answered by Mr.N.Ram by touching upon the Freedom of press. Whether the procedure adopted by the learned Magistrate, who on the one hand rejected the remand of the respondent and on the other hand directed the respondent to execute a bail bond, by itself shows uncertainty in the mind of the Magistrate and consequently, will amount to non-application of mind? - HELD THAT - This Court does not find any ground to interfere with the order passed by the learned Magistrate rejecting the remand of the respondent, who was produced by the police officer after arrest. This Court wants to record its appreciation to the learned XIII Metropolitan Magistrate Court, Egmore, for the manner in which the proceedings were conducted in the midst of a charged atmosphere in a packed Court hall flooded with advocates, police officers and media persons. The learned Magistrate had maintained equipoise and the same is reflected in the order passed by the learned Magistrate - Petition dismissed.
Issues Involved:
1. Compliance with mandatory procedure during arrest. 2. Application of judicial mind by the Magistrate in rejecting remand. 3. Entitlement and participation of a third party in judicial proceedings. 4. Consideration of third-party submissions as extraneous. 5. Uncertainty in the Magistrate’s decision regarding remand and bail bond. 6. Sufficiency of reasons provided by the Magistrate for rejecting remand. Detailed Analysis: Issue (a): Compliance with Mandatory Procedure During Arrest The police must follow the procedure under Section 41 of Cr.PC, which includes informing the arrested person of the grounds of arrest and allowing them to meet an advocate. The arrest intimation form provided to the respondent lacked fundamental details such as the reason for arrest and the police station involved. This non-compliance with the guidelines established in D.K. Basu v. State of West Bengal and statutory requirements under Sections 41, 41A, 46, 50, and 50A of Cr.PC was noted by the Court. The respondent was only informed of the reason for arrest in open court, which is a violation of his rights. Issue (b) & (f): Application of Judicial Mind by the Magistrate and Sufficiency of Reasons The Magistrate must ensure that the arrest is legal and justified. The remand application should demonstrate sufficient grounds for detention. The Court found that the police failed to provide adequate materials to justify the respondent’s remand. The Magistrate correctly rejected the remand, noting the absence of sufficient evidence and the procedural irregularities in the arrest. The Magistrate's decision was supported by precedents like Arnesh Kumar v. State of Bihar and Joginder Kumar v. State of Uttar Pradesh, which emphasize the necessity of judicial scrutiny and the requirement for the police to provide justifiable grounds for arrest. Issue (c) & (d): Entitlement and Participation of a Third Party The Magistrate sought the opinion of Mr. N. Ram, a senior journalist, regarding the invocation of Section 124 of IPC against a publication. This was done under Section 32 of the Advocates Act, which allows the court to permit any person to appear before it. The Court found this procedure acceptable, noting that Mr. Ram’s input did not influence the Magistrate’s decision on the merits of the case. The precedent in Harishankar Rastogi v. Girdhari Sharma supports the court’s discretion to allow non-advocates to speak in court. Issue (e): Uncertainty in the Magistrate’s Decision The Magistrate rejected the remand but directed the respondent to execute a bail bond, which was challenged as showing uncertainty. However, the Court found that the Magistrate’s actions were in line with Section 59 of Cr.PC, which allows for the discharge of an arrested person on their own bond or bail. The Magistrate’s order was seen as a balanced approach, ensuring the respondent’s availability for further investigation while allowing the police to gather more evidence. Conclusion: The Court upheld the Magistrate’s order rejecting the remand, noting the lack of sufficient material to justify the respondent’s detention and procedural irregularities in the arrest. The participation of Mr. N. Ram was deemed appropriate and did not affect the judicial decision. The Magistrate’s direction for the respondent to execute a bail bond was found to be a proper exercise of judicial discretion. The petition was dismissed, and the Court appreciated the Magistrate’s conduct in handling the case amidst a charged atmosphere. The judgment was directed to be circulated among police and judicial officers for compliance in future cases.
|
