In the Supreme Court of India
|NAME OF THE CASE||Kerala Union of Working Journalists vs. Union of India|
|CITATION||Writ Petition (Criminal No.) 307 of 2000|
|APPELANT||Kerala Union of Working Journalists|
|RESPONDENT||Union of India|
|DATE OF CASE||28 April, 2021|
|BENCH/ JUDGE||A.S Bopanna, Surya Kant|
|STATUES/CONSTITUTION INVOLVED||Indian Penal Code, Civil Code of Criminal Procedure|
|IMPORTANT SECTIONS / ARTICLES||Section 7, 14 of Unlawful activities Prevention Act, Section 65,72 and 76 of Information Technology Act and Section 107/151 civil code of criminal procedure.|
In this case a writ petition was filed seeking writ of habeas corpus under article 32 for the release of Sidhique Kappan son of Muhammad who was a journalist and member of Kerala Union of Working Journalists. Sidhique Kappan was claimed to be illegally arrested without any prior notice or order. On the other hand, the state of Uttar Pradesh clearly denied the accusation and claimed the detenu was lawfully arrested. From the very beginning the respondent state strongly opposed the maintainability of petition(in exception cases) however the wife of accused applied for immediate release of her husband owing to his deteriorating health conditions and the bench asked him to shift to hospital for treatment and once he recovers, to shift again to the Mathura Jail. However, he would have the liberty to avail alternative remedies to approach court for bail or challenging the proceedings and the petition was disposed of.
According to article 32 also known as the heart and soul of the constitution is the right to move to the Supreme Court in the case of violation of fundamental rights. The Supreme Court has the power to issue writs that are Habeas Corpus, mandamus, prohibition, quo warranto and certiorari. In the writ of habeas corpus, the prisoner or petitioner is brought in the court to determine if the arrest\detention is lawful or not.
The offence of Gang rape and assault was committed on 14 September, 2020. The victim was dragged by the four men (who belonged to the upper caste) due to which her spinal cord was injured. According to the family, the police in the beginning humiliated the victim and her family and rejected the claims, the complaint was finally registered on 20 September and victim’s statement was recorded on 22 September in which she mentioned about being raped and when she attempted to resist, she was strangled. She was admitted to hospital and was later moved to Delhi. The victim died on 29 September.
In this present case, Sidhique Kappan, a journalist under Kerala Union of working journalists was on his way to Hathras to report on the incident of a gang rape and murder. A 19 year old dalit girl was gang raped and assaulted brutally by her neighbors and died later on and was cremated without her family’s consent. This case got global attention. He was arrested by Uttar Pradesh police on 5 October 2020 under Unlawful Activities Prevention Act and was alleged to be a popular front of India. He was also accused of being found with materials that could lead to breach of peace and instigate violence. Police also alleged that Kappan’s ID card was expired and he had nothing to do with Journalism. The Kerala union of working Journalists filed a writ petition claiming that he was taken into illegal custody and no order or notice was given prior to the arrest. The state of Uttar Pradesh opposed the claim and even filed a supplementary affidavit on 9 December 2020 explaining the accused was lawfully arrested.
The respondent state was against the maintainability of petition by petitioner association however before the proceedings was started a request for immediate release of accused was applied by wife owing to his health issues as the safety and health of accused is more important and also as soon as the accused recovers he must be to Mathura Jail but he will have all liberty to avail appropriate remedy.
FACTS OF THE CASE
A writ petition was filed under habeas corpus for the accused by Kerala union of working journalists. The accused was a journalist who was arrested on his way to the state by the police on 5 October 2020 under section 107 of code of criminal procedure, 1973. The respondent state filed an affidavit on 20 November 2020, refusing the allegation of unlawful arrest and later on 9 December 2020 an supplementary affidavit was filed giving explanation of lawful arrest under section 107\151 code of criminal procedure in FIR no. 199\2020 dated on 7 October 2020 registered at police station Manth district Mathura under Sections 153A, 295A and 124A of Indian Penal Code, Section 7,14 of Unlawful Activity prevention Act, 1967 and under sections 65,72 and 76 of Information Technology Act,2008.
The respondent also in the beginning was against the maintainability of petition by petitioners association but this issue lost its significance as various events took place, most important of them was, accused wife Mrs. Raihanath applied for immediate release of her husband due to his health issues and apart from that completion of investigation, filing of charge sheets was also done.
The petitioner association filed an application for an order to be issued during pendency of litigation and owing to his health conditions to release him on bail; petitioner’s association on the direction of court presented a report on the medical record of Kappan. According to which he was tested covid positive on 21 April 2021. He was having a fever and also suffered an injury for which intervention of Surgeon was suggested.
The accused was admitted to hospital and was revealed to have multiple health issues like diabetes, blood pressure, heart ailment etc however the next medical record along with additional affidavit showed that he had tested covid negative.
According to the records, the accused was produced before court after arrest and later an FIR was registered. The investigation was completed and a charge sheet was over 5000 pages so the petition was disposed of and the detenu got alternative remedies including right to approach court for grant of bail and for redressal of grievances and asked the arrestee to be shifted to hospital and after the recovery he would be shifted back to jail and the bench did not expressed any view on merits of controversial issues.
ISSUES RAISED BY COURT
- A writ of habeas corpus was filed for the release of Sidhique Kappan son of Muhammad who was claimed to be illegally arrested without any prior notice.
- An application was filed by the petitioner’s association to release him on bail due to his medical conditions, even though the litigation was pending.
ARGUMENT FROM THE APPELLANT SIDE
- The senior learned counsel Mr. Kapil Sibal on the behalf of appellant pleaded to let him visit Kerala to visit his mother who was said to be in a critical condition and had minimum chances of long survival.
- The learned counsel argued on the behalf of the petitioner that the arrest is illegal and is done without any prior information.
- The learned counsel pleaded on the behalf of petitioner that he must be released on bail due to his critical health conditions and the report was also presented before the court showing the accused was COVID POSITIVE and also faced a head injury.
ARGUMENTS FROM RESPONDENT SIDE
- Mr. Tushar Mehta, the learned solicitor general who appeared for the state of Uttar Pradesh argued that from the records it is clear that the accused was produced before the jurisdictional court after arrest and only after that FIR was registered.
- Mr. Tushar Mehta, the learned solicitor general who appeared for the state of Uttar Pradesh presented another set of medical records the next morning that showed the test to be COVID NEGATIVE.
- Mr. Tushar Mehta, the learned solicitor general, also emphasized that the accused would be given much needed medical treatment and also further facility will be extended also the right to life is given to all, even to an under trial.
- Section 107 of Code of Criminal Procedure, 1973 –
This section is for maintaining the peace in other cases, if executive magistrate receives any information about breach of peace or any wrongful act he require such person to show why he should not be ordered to execute a bond and the place where breach of peace is committed must be either under the local jurisdiction of executive magistrate or the person must be from his jurisdiction.
- Section 107\151 Code of Criminal Procedure –
A person knowing of to comment on any cognizable offence then police can arrest with or without a warrant and orders from magistrate and the commission cannot be prevented by some other measure but no one person can be kept under custody for more than 24 hours.
- Section 153 A of Indian Penal Code-
Anyone by any means attempts to promote feelings of enmity between different regional groups on the basis of religion, race, caste, community etc. shall be punished with imprisonment or fine or both.
- Section 295A of Indian Penal Code-
Anyone with malicious intentions and acts that tries to outrage religious feelings by insulting religious beliefs of a particular class shall be punished with imprisonment, fine or both.
- Section 124 A of Indian Penal Code-
Anyone by any means attempts to bring hatred or disaffection (disloyalty and feelings of enmity) shall be punished with imprisonment of life or fine or imprisonment extended to three years.
- Section 7 of Unlawful Activities Prevention Act, 1967-
This section prohibits an unlawful association from using its funds (money, securities or credits etc.) for the unlawful association.
- Section 14 of Unlawful Activities Prevention Act, 1967-
Notwithstanding anything contained in 1(code), an offence punishable under this act shall be cognizable.
- Section 65 of Information Technology Act, 2000-
Anyone with any means tampers the computer source documents intentionally, when the source code is required to be maintained by law shall be punished with imprisonment or fine or both.
- Section 72 of Information Technology Act, 2000-
If any person in pursuance of power secure access to any information or record without the consent of the person to whom the information is concerned shall be punished with imprisonment, fine or both.
- Section 76 of Information Technology Act, 2000-
Any device computer, floppy disks or compact disks, tape recorders etc related to any provision of this act has been contravened shall be liable to confiscation.
In the present case, the Supreme Court after hearing all accusations, pleas and arguments said that the various issues were led before the court but the inquiry was limited to providing much needed health care to the accused. As their records proved that the accused was produced before the jurisdictional and only after that FIR was registered and also investigation was completed and a charge sheet was also filed so it was prudent to continue the present petition. However the petitioners have the right to approach the court and grant for bail.
In order to provide adequate health care the petitioner must be shifted to All India Institute of Medical Science or any other government hospital and as soon as he recovers he must be shifted back to Mathura Jail and he can also challenge the proceedings and if such petition is filed by him it will be decided by concerned court on its own merits and according to law and no views were expressed on contentious issues.
Also Sidhique Kappan was permitted to visit Kerala for a period of 5 days to see his ailing mother and at that time he must not give any interview to any social media or journalists.
Right to life and personal liberty comes under Article 21 of Indian Constitution and according to it no person shall be deprived of life and personal liberty except according to the procedure accepted by law. In the present case I not only agree with the court’s decision but also appreciate it. Under this case it was held that even under trials are also held under fundamental right to life and are entitled to receive the needed medical care and attention. In the court it was also observed that accused was legally detained hence, did not intervene with facts of case and only give instructions and orders about medical care and right to approach court and grant of bail.
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