TaxTMI 
TaxTMI 
2019 (1) TMI 1971
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.... Nadu with an intention to prevent the Governor from exercising his lawful powers and duties and the same amounts to an offence under Section 124 of IPC. 4. Pursuant to the registration of the FIR, the petitioner police proceeded to arrest the respondent on 09.10.2018 and produced him before the Learned Magistrate for remand. The Learned Magistrate after going through the remand report and case diary and after hearing the submissions of the learned counsel appearing for either parties, refused to remand the respondent on the ground the police have not produced sufficient materials, justifying the remand. The learned Judicial Magistrate further gave liberty to the police to come up with sufficient materials and also directed the respondent to execute a bail bond for a sum of Rs. 10,000/- (Rupees ten thousand only) on condition that he will appear whenever called for interrogation by the police and before the Court. 5. Mr.A.Ramesh, learned Special Public Prosecutor appearing on behalf of the state assailing the order passed by the learned Magistrate, made the following submissions :- 5.1. The learned Magistrate did not apply his mind to the sufficient materials that were pro....
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....of the Constitution of India and the moment the offence is committed, Article 19(2) of the Constitution of India kicks in. 5.9 The learned Senior Counsel in order to substantiate his arguments relied upon the following judgments : i. AIR 2014 SC 2756 [ Arnesh Kumar Vs. State of Bihar] ii. AIR 1994 SC 1349 [ Joginder Kumar Vs. State of Uttar Pradesh and others] iii. 2008 Cri.LJ 1998 [Sanal Haque Vs. State of Uttar Pradesh and another] iv. 1985 Cri LJ 68 [Miss R. Shakuntala vs Roshanlal Agarwal And Others] 6. The respondent was represented by two counsels viz., Mr.P.T.Perumal and Mr.P.Kumaresan. 7. Mr.P.T.Perumal, learned counsel who appeared before the Court below on behalf of the respondent at the time of remand, wanted to appraise this Court as to what actually transpired at the time of hearing and what were all the materials that where submitted at the time of arguments and the learned Counsel also wanted to confine his submissions to the articles published in Nakkeran, the Freedom of Press and whether the materials prima facie constituted an offence under Section 124 of IPC. 8. Mr.P.Kumaresan, the learned counsel focused his submis....
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....names of nearly 34 persons have been unnecessarily added as accused persons in the FIR. The learned counsel also submitted that the persons whose name has been shown in the article and based on whose statements, the article was written, has been safely omitted to be shown as accused person. The accused persons have been chosen selectively to stop the publication of articles in "Nakkeran". 9.9. The publication at the worst can only cause harm to the reputation of any person and till now, proceedings used to be initiated for defamation and it is the first time in the legal history of India where a publication has been made a cause of action to register an FIR under Section 124 of IPC. 9.10. There cannot be prevention or prior restraint of publication since it directly touches upon the Freedom of Press and by no stretch, a publication can overawe any public authority and the complaint itself is oppressive to gag the media. 9.11. Mr.N.Ram, the Chairman of Hindu Publications was standing in the midst of advocates and others who had gathered in the Court at the time of hearing. He did not make any submission on his own. The learned Magistrate himself called upon Mr.N.Ram and inv....
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....Vs. the State of Tamil Nadu rep.by its Secretary to Government and another] 10. Mr.P.Kumerasan, learned counsel made the following submissions :- 10.1 The learned Magistrate has applied his mind in rejecting the remand sought for by the petitioner and the same is evident from the order itself. 10.2 The order of remand is a judicial function performed by Magistrate and the learned Magistrate cannot mechanically remand any accused person and in this case, the learned Magistrate has satisfied himself that no sufficient materials were produced before the Court to justify the remand of the respondent. 10.3 The application of mind by the learned Magistrate is evident from the fact that he has permitted the police to collect sufficient materials and thereafter approach the Court and in the meantime, the respondent has been directed to execute a bail bond for Rs. 10,000/- on condition that he should appear for interrogation by police and also appear before the Court. Therefore, this order has been passed in line with the provisions under Section 59 of the Code of Criminal Procedure. In order to substantiate his submission, the learned counsel relied upon the judgment of the Bom....
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....ant given by the Deputy Secretary to the Governor to the effect that "Nakkeran" a biweekly Tamil magazine in its publications made in various issues from April to September 2018, has published fake and derogatory news about His Excellency the Governor of Tamil Nadu with an intention to prevent him from exercising his lawful powers and duties and the same amounts to overawing the Governor. 14. The respondent was arrested on 09.10.2018 and he was produced before the learned XIII Metropolitan Magistrate Court for remand. The learned Magistrate after considering the remand report, case diary and also the submissions made on either side, rejected the remand on the ground that the police have failed to produce sufficient materials against the respondent. 15. The following important issues arise for consideration in this petition : a. Whether the Police followed the mandatory procedure while arresting the respondent before producing him before the learned Magistrate? b Whether a learned Magistrate had properly applied his mind regarding the materials available on record while rejecting the remand of the respondent? c. Whether a 3rd party is entitled to mak....
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.... been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguards provided to a person with a view to protect his personal liberty against any unjustified assault by the State. In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human r....
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....o which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It is desirable that the officer arresting a person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in the memo which must also be countersigned by the arrestee. 35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer car....
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.... including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. 36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. 37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlie....
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....rrest 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. This process of arrest carried out by the Police is not in strict compliance with the guidelines given in D.K.Basu case and the provisions of the Code of Criminal Procedure. 17. Discussion on Issues "b & f" i. A person arrested....
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....e aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such ....
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.... thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the pol....
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....rovisions of Section 41,Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued. 13. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions: 1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 2.All police officers be provided with a check list containing specified sub-clau....
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....r more of the following criteria: (a) the person's unwillingness to identify himself so that a summons may be served upon him; (b) the need to prevent the continuation or repetition of that offence; (c) the need to protect the arrested person himself or other persons or property; (d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and (e) the likelihood of the person failing to appear at court to answer any charge made against him." The Royal Commission in the abovesaid report at p. 46 also suggested: "To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be fingerprinted or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the....
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.... There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. 19. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police - Richard Clayton and Hugh Tomlinson; p. 313). That section provides: "[W]here a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there." These rights are inherent in Articles 21 and 22(1) of the Constitution an....
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....trate concerned authorised the detention of the accused in such custody as such the Magistrate thinks fit, for a term not exceeding 15 days, it shows that the judicial remand shall be passed on the subjective satisfaction of the Magistrate on the basis of the relevant police papers, in such circumstances, the perusal of the relevant police papers is essentially required for the application of the judicial mind of the Magistrate concerned, in such process the learned Magistrate concerned is not under obligation to accept the report of the I.O. without applying the judicial mind for passing the judicial remand, it may be accepted or it may be rejected or it may be altered by adding some more offence or deleting some offence, in the present case also, same issue is evolved ii) 2014 SCC online All 895 (Surendra Kumar v. State of Uttar Pradesh] and the relevant portions of the judgment is extracted hereunder: In case the Magistrate is of the opinion that the arrest has not been made in a bona fide manner, or the grounds for arrest mentioned do not conform with the criteria set out in sections 41(1)(b) or 41 A, or there is no material to substantiate the reasons for arr....
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....est is required, he may arrest the said accused after recording his reasons for the same. The police powers of arrest will be subject to any orders that may have been passed by the Competent Court. In case the police officer arrests the accused the Magistrate before whom the accused is produced for an order of remand, shall examine the reasons mentioned in the case diary for arresting the accused for satisfying himself that the arrest has been made in accordance with the exceptional circumstances indicated in sections 41(1)(b) and 41 A Cr.P.C described hereinabove. In case the Magistrate is of the opinion that the arrest has not been made in a bona fide manner, or the grounds for arrest mentioned do not conform with the criteria set out in sections 41(1)(b) or 41 A, or there is no material to substantiate the reasons for arrest, the Magistrate may refuse to remand the accused to custody and may release the accused on personal bond with or without sureties after taking an undertaking from the accused to appear before the investigating officer or the Court when required. iv) 1993 SCC online Bom 187 (Shrawan Waman Nade and others Vs. State of Maharashtra) and the rel....
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....he is bound to keep under section 172, Criminal Procedure Code. The object of enacting this section is that the entries in the diary afford to the Magistrate information upon which he can decide whether or not the detention of the accused person in custody should be authorised and also to enable him to form an opinion as to whether any further detention is necessary. In the absence of the entries referred to in that section, it is difficult for the Magistrate to decide whether either the detention was authorised or the further detention is necessary. By not complying with with the first requirement, the investigating officers render that part of the section which requires the transmission of entries in the case diary otiose. It is really astounding that a Police Officer should offer the explanation that it is not usual to send copies of case-diary in spite of an obligation cast on them by the section. We are unable to understand how the Magistrates are able to act on the remand reports without the entries. These are very relevant in considering whether a further remand should be granted or not. We hope that the Magistrate acting under section 167 would insist upon....
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....ed Superintendent of Police may extend the time for service of notice after recording reasons in writing. d) The police officer shall follow the guidelines issued by the High Court of Delhi in Amandeep Singh Johar v State of NCT Delhi and Anr (W.P Civil 7608 of 2017), dated 07/02/2018, as regards the format and contents of the notice under Section 41-A and the mode and manner of its service. The aforesaid guidelines shall be followed till such time suitable amendments are incorporated into the Second Schedule of the Code. Suitable circular instructions shall be issued by the Director General of Police to all Station House Officers, directing them to follow the aforesaid procedure. e) There may also be cases where the police officer may not require the presence of the accused for interrogation and may complete the investigation without going anywhere the accused. In such cases, notice under Section 41-A of the Code need not be issued. f) In view of Section 41-A(4) of the Code, where the accused does not act in terms of the notice issued under Section 41-A(1) or is unwilling to identify himself, the police officer can proceed to arrest him for the offence s....
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....o see whether there exists some material to justify a remand. The Magistrate cannot conduct a roving enquiry to test the sufficiency of material at this stage for the obvious reason that investigation would be at a nascent stage and the police are yet to file a report either under Section 169 or Section 170 of the Cr.P.C. k) Mechanically reproducing in the case diary all or most of the conditions contained in Section 41 Cr.P.C will not suffice. This is plainly a subversion of the law, and is a practice to be strongly deprecated. l) A Magistrate before whom the accused is produced for remand must scrutinize the file to ensure that the requirements of Section 41(1)(b) of the Code are satisfied. If the Magistrate finds that Section 41(1)(b) of the Code has not been complied with, he would be justified in refusing to remand the accused to custody, and may direct that the accused be released on his own bond, without or without sureties, with an undertaking that he shall appear before the investigation officer as and when required. By adopting this procedure unnecessary arrest can be avoided and investigation can be speeded up. m) It requires no reiteration tha....
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.... be applied to the facts of the present case. 20. The FIR gets registered on the very same day for an offence under Section 124 of IPC. As stated in the begining of this judgment, this is the first time an FIR has been registered for an offence under Section 124 of IPC against a publication made in a Journal. The justification being that the publication attempts to overawe the Governor to prevent him from exercising his lawful powers and duties. 21. 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. The question of whether mallacious criticism of the police on facebook would amount to an offence under Section 353 of IPC was considered by t....
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....124 of IPC has been invoked against a media house for publishing an article. Only after this query was put to Mr.N.Ram, he had given his opinion about the same and he had also stated that such registration of FIR will directly affect and interfere with the Freedom of Press. 25.2 The learned Magistrate was under the bonafide impression that he is entitled to call for such opinion in view of provisions available under Section 32 of the Advocates Act, 1961 and Rule 69 of the Criminal Rules of practice. This report submitted by the learned Magistrate stands fortified by the submissions made by Mr.P.T.Perumal, the learned counsel for the respondent, who appeared before the Court below on behalf of the respondent. 25.3 It will be relevant to extract Section 32 of the Advocates Act herein :- 32. Power of Court to permit appearances in particular cases.-Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case. It is clear form this provision that the Court has the power to permit any person not enrolled as an advocate to put forth....
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....was answered by Mr.N.Ram by touching upon the Freedom of press. 25.5 This Court does not find anything wrong with the procedure adopted by the learned Magistrate and the submissions made by Mr.N.Ram in this case, has not in any way affected the decision taken by the learned magistrate since Mr.N.Ram has not made any submissions on the merits of the case. The respondent was effectively represented before the Court below by his Counsel Mr.P.T.Perumal on the merits of the case. 26. Discussion on Issue "e" i. It is seen from the order passed by the learned Magistrate that while rejecting the remand of the respondent, the learned Magistrate has directed the respondent to execute a bail bond for Rs. 10,000/- on condition that the respondent shall appear for interrogation before the police and also before the Court during hearings. This procedure adopted by the learned Magistrate has been called in question by the learned Special Public Prosecutor appearing for the petitioner. This according to the learned Special Public Prosecutor clearly demonstrates the uncertainty in the mind of the Magistrate. The learned Senior Counsel submitted that the Magistrate after having reject....
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....f course there is a clear manifestation of a contrary purpose. Or to put it in a slightly different language where general and special words which are capable of analogous meaning are associated together, they take colour from each other and the general words are restrained and limited to a sense analogous to the less general. The ejusdem generis doctrine has been described in the words of Lopes, L.J., in Smelting Co. of Australia v. Commr. of Inland Revenue (1897) 1 QB 275, as meaning "that where general words immediately follow or are closely by associated with specific words, their meaning must be limited by reference to the preceding words". Ejusdem generis is not a rule of law but a rule of construction which enables a Court to ascertain the intention of the legislature when the intention is not clear, and does not warrant the Court is subverting or defeating the legislative will by confining the operation of a statute within narrower limits than intended by the law-makers. It should be resorted to not for the purpose of defeating the intention of the Legislature but for the purpose of elucidating its words and giving effect to its intention. It is based on the idea that if th....