Madras High Court
S.Gandhi vs State Represented By on 21 August, 2018
Author: C.T.Selvam
Bench: C.T.Selvam, M.Nirmal Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21.08.2018 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM AND THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR H.C.P.No.1695 of 2018 and Crl.M.P.No.10757 of 2018 S.Gandhi ... Petitioner -vs- 1.State represented by The Commissioner of Police, Greater Chennai, Chennai. 2.Secretary to Government, Home Prohibition and Excise Department, Fort St. George, Chennai 600 009. 3.The Inspector of Police, E-2, Royapettah, Chennia 600 014. 4.The Superintendent of Police, Vellore Central Prison, Vellore 632 002. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records in Crime No.440 of 2017 on the file of the XVIII Metropolitan Magistrate, Saidapet, Chennai consequently direct the respondents to produce the body of the detenu before this Court and set him at liberty. For Petitioner :: Mr.N.R.Elango, Senior Counsel for Mr.E.Raj Thilak For Respondents:: Mr.Vijay Narayan, Advocate General Assisted by Mr.R.Prathap Kumar, Additional Public Prosecutor * * * * * O R D E R
[Order of the Court was made by M.NIRMAL KUMAR, J.] The petitioner is the father of Thirumurugan Gandhi, who has been detained in Central Prison, Vellore as per the remand order dated 10.08.2018, passed by the learned XVIIII Metropolitan Magistrate, Saidapet, Chennai - 600 015 in Cr.No.440 of 2017 has filed this Writ of Habeas Corpus, to call for the records in Cr.No.440 of 2017 and consequently direct the respondents to produce the body of the detenu before this Court and set him at liberty.
2.The learned Senior Counsel appearing for the petitioner submits that the son of the petitioner namely Thirumurugan Gandhi is an ardent activist and the founder of May 17 Movement established in the remembrance of Tamils, who lost their life on that day in 2009. Further, the detenu advocates for the self-determination for Tamils, Palestinians, Kurds, Kashmiris, Sahrawis and Sikhs. He regularly lobbies the diplomatic community on behalf of these groups, as well as on behalf of indigenous peoples and communities that alleged to have been subjected to war crimes.
3.Further, the detenu fights for the right to life of migrant workers, the right of farmers to water and the rights of workers, refugees, persons with disabilities, persons belongs to linguistic and religious minorities and transgender persons and he has been actively participated in protesting against the World Trade Organization's rules concerning public distribution systems, privatization of electricity, projects that could be potentially detrimental to the environment, such as hydraulic fracturing, and building nuclear reactors in densely populated areas. He is a supporter of protests against the use of nuclear power plants and has led such protests in Kudankulam since 2012.
4.The detenu is actively participated and supported the protest in Thoothukudi against the Sterlite factory and he had also condemned the firing by the Police on 22.05.2018 against the innocent protesters. Being the founder of May 17 Movement, he has been propagating for the cause of the needy persons, for which he had come on adverse notice of the Government and he had been facing several prosecutions and he was also detained under Goondas Act on 21.05.2017, which later came to be quashed by this Court in H.C.P.No.1131 of 2017 by order dated 19.09.2017.
5.After the release from the detention on 20.09.2017, the detenu had come out and started a rally from Puzhal along with the members of May 17 Movement and assembled near Llyods Road to garland the statue of Thanthai Periyar, which caused inconvenience to the public by causing obstruction, which became a threat to law and order. For which the Inspector of Police, E2 Royapettah Police Station had registered a First Information Report (FIR) on 21.09.2017 in Cr.No.440 of 2017 for the offences under Sections 143, 188, 353 of the Indian Penal Code.
6.In the meanwhile, the detenu had addressed the United Nations General Assembly on Human Rights Council and the said speech was delivered on 25.06.2018 at Geneva (UN) about the Tuticorin firing, which was translated and posted in Face Book page social media related to May 17 Movement and spread it virally with an intention to cause riots and fear among public. Against which a case was registered by the CCB, Cyber Crime Cell in Cr.No.274 of 2018 for the offences under Sections 153, 505(1)(b) and 505(1)(c) of the Indian Penal Code and a Lookout Circular was issued by the CCB Police.
7.On 09.08.2018, the detenu was detained by the Airport Police on his arrival at Bengaluru Airport, based on the Lookout Circular generated by the CCB, thereafter, produced the detenu before the Civil Judge, JFMC Court, Devanahalli, Bengaluru for Transit Warrant. Thereafter, the detenue was produced before the XI Metropolitan Magistrate, Saidapet, Chennai - 600 015 on 10.08.2018, by a detailed order quoting the Judgment of this Court reported as Elumalai Vs. State of Tamil Nadu in 1983 Mad LW (Cri) 121; G.K.Moopanar, M.L.A. & others Vs. State of Tamil Nadu reported in 1990 Cr.L.J. 2685, wherein this Court pointed out that "remand should not be made mechanically and as a matter of routine and such routines should be deprecated. Thus, the Investigation Officer failed to make out the prima facie materials to remand the accused to Judicial custody for 15 days". Hence, the XI Metropolitan Magistrate, Saidapet, Chennai 600 015 declined to remand the accused, but gave liberty to the Investigation Officer of CCB, Cyber Crime to deal with the detenu as per Section 57 of the Code of Criminal Procedure.
8.Thereafter, the detenu was taken to the office of the Commissioner of Police and he was asked to leave after signing some documents. As he was coming out of the office of the Commissioner of Police, the Inspector of Police, E2 Royapettah Police Station has rounded up the detenu and he was arrested for a case registered on 21.09.2017 in Cr.No.440 of 2017 under Sections 143, 188, 353 of the Indian Penal Code, later with altered charges with sedition to add weight to the case under Section 124 A, 153 of the Indian Penal Code and thereafter, taken the detenu to the Central Prison, on the order of Remand by the XVIII Metropolitan Magistrate, Saidapet, Chennai, against which the present Writ of Habeas Corpus has been filed.
9.The case of the prosecution is that on 21.09.2017, the Inspector of Police, E2 Royapettah Police Station, based on the special report given by one Velu the Sub-Inspector of Police, who was on patrol duty between 01.00 p.m. and 09.00 p.m. along with Head Constable - Ramesh at about 05.15 p.m. near the junction of V.M.Road and Lloyds Road witness the detenu coming in an Innova Car followed by several autos, cars, minibuses and two-wheelers, who obstructed the traffic and from the above said Innova Car, the detenu alighted along with three others, followed by 150 members of his followers and the local Dravidan Freedom Party members have also joined them, who raised slogans against the Government and Police Department, which was objected by the Sub-Inspector of Police - Velu by stating that under Section 41 of City Police Act, there is a ban for procession and public meeting and hence, no procession or public meeting to be carried on by the detenu and his followers, which was not heeded to. On the contrary, they proclaimed that no body can stop them by stating that the Hon'ble High Court had released them and they are ready to face any consequences. By raising slogans against the Government they reached the Thanthai Periyar statue and garlanded the statue.
10.The Sub-Inspector of Police - Velu had informed the control room about the happenings. On receipt of the information, the Inspector of Police, E2 Royapettah Police Station had rushed to the scene along with his party. On seeing the police force the detenu and his followers had taken to their vehicles and had fled away. By their acts, the detenu and his followers caused obstruction and created fear to the public, causing traffic jam and fear. For which, the Sub-Inspector of Police Velu, had given a special report, based on which, a case has been registered in Cr.No.440 of 2017 for the offences under Sections 143, 188, 353 of the Indian Penal Code. During the investigation, it was found that the case was registered for the offences of un-lawful assembling, dis-obedience to the order due promulgated by the public servant and hence of public fear to take from discharge of his duty latter the Section of Sedition and Provocation to cause riot was added.
11.During investigation, the Investigation Officer thought fit that the words spoken and uttered by the detenu and his followers attracted under Section 124-A and 153 of the Indian Penal Code have been committed by the detenu and his followers an alteration report dated 18.11.2017 including offences under Sections 124-A and 153 of the Indian Penal Code was made. This alteration report was made based on the statements of Sub-Inspector of Police - Velu, Police Constable - Dinesh Kumar, Gunasekaran, Ramesh and one Suresh. From their statements it revealed that the detenu by his words attempted to bring hatred against the State and Central Government and against saffronization and threatened that if his followers take up into Periyarism seriously, the persons with such ideology would be chased out of India through Kyber pass. Hence, the alteration report came to be filed.
12.A police notice was attempted to be served on the detenu on 20.11.2017, the detenu refused to receive the same and since there were 50 members along with the detenu. The above said notice could not be pasted by one Ranganathan Sub-Inspector of Police fearing law and order problem and hence, the police notice could not be served on the detenu.
13.In the meanwhile, the Inspector of Police, E2 Royapettah Police Station had conducted an investigation and continued the investigation and recorded the statement of witnesses upto 10.08.2018. On which day, Velu the Sub-Inspector of Police, Royapettah was examined and submitted that recording of the seditious speech could not be done both by audio and video means on 20.09.2017 made by the detenu, as he and other police personnel were busy in clearing the traffic jam created by the detenu and his followers. The Inspector of Police, E2 Royapettah Police Station, on coming to know about the presence of the detenu in the office of the Commissioner of Police in connection with the CCB, Cyber Crime case, the Inspector of Police, E2 Royapettah Police Station arrested the detenu on 10.08.2018 at about 07.00 p.m. near old Police Commissioner Office, Egmore recorded the confession statement at about 08.30 p.m. and thereafter, at about 11.45 p.m. the detenu was produced before the XVIII Metropolitan Magistrate, Saidapet, Chennai - 600 015 for remand. The learned XVIII Metropolitan Magistrate, Saidapet, Chennai - 600 015 on perusal of the alteration report, 161 statement of witnesses and on prima facie satisfaction had remanded the detenu to judicial custody till 24.08.2018.
14.The learned Senior Counsel for the petitioner vehemently opposed the arrest and remand of the detenu and contended that the entire case against the detenu is a fabricated one and the case against him had been foisted, as the detenu being the founder of May 17 Movement, which had been regularly lobbing the diplomatic community effusing the cause of persons belong to linguistic, religious minorities and transgender persons. He has been active in protesting against the World Trade Organization's rules concerning public distribution systems, privatization of electricity, projects that could be potentially detrimental to the environment, such as hyraulic fracturing, building nuclear reactors in densely populated areas. He is a supporter of protest against the use of nuclear power plants and led protests in Kundankulam since 2012 and further participated and supported the protest in Thoothukudi against the Sterlite Factory and he had also condemned the firing by the police against the innocent protesters on 22.05.2018 and he is actively effusing the cause of these persons in various forums.
15.The learned Senior Counsel for the petitioner further submitted that the detenu had accepted the invitation of United Nation, Geneva and had spoken about the prevailing problems and protest going on in Tamil Nadu and more particularly highlighted on the Thoothukudi Protest against the Sterlite and in-humane attitude of the State Government of Tamil Nadu and Tamil Nadu Police Department, who had open fired against the protesters. He has been propagating against the Sterlite issue, who condemn the firing done on 22.05.2018.
16.The detenu being the founder of May 17 Movement has conducted candle light Vigil in Marina Beach in remembrance of Tamil Genocide since 2009, for which a FIR was registered in Cr.No.1282 of 2016 on 18.09.2016 for offences under Sections 188, 353 and 506 (1) of the Indian Penal Code, which has been taken on file in C.C.No.7541 of 2017 by the XIII Metropolitan Magistrate, Egmore, Chennai - 600 008. There have been several cases filed against the detenu, as it could be seen from the grounds of detention made under Act 14 of 1982 filed in the typed set of papers.
17.It is further contended by the learned Senior Counsel that the detenu had filed the quash petition against the FIR in Cr.No.440 of 2017 in Crl.O.P.No.25577 of 2017 and this Court on 07.12.2017 was pleased to admit the quash petition and notice has been ordered to the respondents.
18.The learned Senior Counsel further contended that the detenu had represented and addressed the United Nations General Assembly on Human Rights Council concerning his Arbitrary Detention, of such cases and the detention order passed under Act 14 of 1982 for exercising his fundamental rights and freedom of speech as enshrined in the Constitution of India and guaranteed under Universal Declaration of Human Rights. The Government of India, being a signatory to the Universal Declaration in violation of fundamental rights and International Declaration of Human Rights has been trying to curtail and silence the detenu by foisting cases against him.
19.The learned Senior Counsel further contended that the act of the detenu is within his fundamental right and as such foisting of cases and imposing the detention order is in violation of fundamental rights. For which, the detenu had been making representation to the Human Rights Council of United Nations General Assembly and various other forums for Human Rights, which was not liking of the person in power of the State.
20.The learned Senior Counsel for the petitioner submits that For one such instance, the United Nations General Assembly by its communication dated 23.01.2018 gave opinion adopted by the Working Group on Arbitrary Detention at its eightieth Session, 20 - 24 November 2017 in Opinion No.88 of 2017 concerning about Thirumurugan Gandhi/detenue's arrest and detentions. In accordance with its method of work (A/HRC/36/38), on 08.09.2017, the Working Group transmitted the representation and submissions of the Detenu to Government. The Government has chosen not to challenge the prima facie credible allegations made by the detenu. The working group received no response for their communication. Thereafter, after due deliberation a report has been given that there is no legal basis justifying the deprivation of liberty and detention being arbitrary, despite expressing opinions, including those that are not in accordance with the official Government Policy, are protected as per Article 19 of the Universal Declaration of Human Rights and Article 19 of the Covenant. The Government must respect, protect and fulfil the right to assemble peacefully and to associate with others even if the peaceful assembly and association stand for causes not to its liking in accordance with Article 20 of the Universal Declaration of Human Rights and Articles 21 and 22 of the Covenant and further held that Thirumurugan Gandhi's i.e. Detenu's deprivation of liberty was in violation of Articles 19 and 20 of the Universal Declaration of Human Rights and Articles 19, 21 and 22 of the Covenant, falling under Category II.
21.The Working Group has also considered the violations of the due process and fair trial rights suffered by Thirumurugan Gandhi and had observed that the non-observance of the International norms relating to the right to a fair trial established in the Universal Declaration of Human Rights and the Covenant is of such gravity as to give the deprivation of liberty of the detenu, an arbitrary character, falling under Category III. Further, from the report it could be seen that the Universal Declaration of Human Rights and Articles 2 (1) and 26 of the Covenant on the grounds of discrimination based on political or other opinion, as well as on his status as a human rights defender, aimed at and resulting in ignoring the equality of human beings. His deprivation of liberty therefore falls under Category V. The Working Group had also raised several issues and sought the information for the same from the Government within six months of the date of the transmission of the present opinion. However, the Working Group reserves the right to take its own action in follow-up action if new concerns in relation to Thirumurugan Gandhi's cases are brought to its attention. This communication which was not to the liking of the people concerned. Further to this report, the detenu had given a speech on 25.06.2018, with regard to the Tuticorin firing.
22.The learned Senior Counsel submits that since the detention of the detenu under Act 14 of 1982 was quashed in H.C.P.No.1131 of 2017 on 19.09.2017 to deter the detenu from making representation in the International forums and other Human Rights forums, for which he has been propagating for all these years. On 09.08.2018, the detenu was detained in the Airport Police Station, Bengaluru, based on the Lookout Circular given by the CCB, Cyber Crime Cell in Cr.No.274 of 2018, the XI Metropolitan Magistrate by order dated 10.08.2018 had not accepted the request of remand of the detenu by the police citing the Division Bench Judgment of this Court in the case of Elumalai Vs. State of Tamil Nadu reported in 1983 Mad LW (Cri) 121 & G.K.Moopanar, M.L.A. & others Vs. State of Tamil Nadu reported in 1990 Cr.L.J. 2685 that remand should be made mechanically and as a matter of routine and since there is no prima facie material the detenu was not remanded, which triggered the E2 Royapettah Police and another arm of the State Police in dusting out the case registered on 21.09.2017.
23.According to the learned Senior Counsel this case is liable to be quashed and quash petition filed in Crl.O.P.No.25577 of 2017 notice has been ordered for Cr.No.440 of 2017. Further contended that Cr.No.440 of 2017 right from inception is with full of contradiction of material alterations as could be seen, from the complaint, the complaint was lodged by way of a special report by one Velu the Sub-Inspector of Police. In the complaint the Cr.No.440 of 2017 has been mentioned and the time of registration of the FIR has been stated as 18 Hours on 20.09.2017. Strangely, in the FIR it has mentioned that the information received is on 21.09.2017.
24.Further to it the learned Senior Counsel represented that the alteration report had reached the Court along with the remand report on 10.08.2018. For verifying the said fact records from the lower Court was summoned. On perusal of the same, it is seen that the complaint was given on 20.09.2017. In the complaint, it is found that the case has been registered in Cr.No.440 of 2017 at 18 Hours. Further, the FIR has been sent to the Court in CFIR No.2100 of 2017 on 04.10.2017 at 05.00 p.m. Though, the alteration report has been dated 18.11.2017 it has been sent to the Court on 23.11.2017 along with the complaint/special report of Velu/Informant the Sub-Inspector of Police, Statements of Ramesh - Head constable, Gunasekar - Head constable, Dinesh Kumar - Constable. All their statements have reached the Court on 23.11.2017. Further, another statement dated 10.08.2018 of the informant/Velu the Sub-Inspector of Police has found, in which he had stated that no audio and video recording of material statements of the detenu or others have been recorded.
25.All the other statements have gone to the Court on 10.08.2018, on the date of the remand of the detenu. Though, there is some force in the submission of the learned Senior Counsel with regard to the manner in which the investigation has been carried out, the question with regard to this Habeas Corpus is to find whether the Judicial order of remand passed by the remanding Magistrate is in confirmity of Article 22 (1) and (2). The learned Senior Counsel submitted that there have been violation of Article 22 (1) and (2) of the Constitution of India and placed his reliance in the matter of Madhu Limaye and Others reported in 1969 (1) SCC 292.
26.The learned Advocate General, who had appeared for the State had filed the typed set of papers and submitted that the detenu has been remanded and detained based on the FIR in Cr.No.440 of 2017. Thereafter during investigation, the Investigation Officer had filed an alteration report on 18.11.2017 adding Sections 124 A and 153 of the Indian Penal Code, which was sent to the concerned Metropolitan Magistrate on 23.11.2017, thereafter, the detenu was arrested on 10.08.2018 at about 11.45 p.m. and the learned XVIII Metropolitan Magistrate, Saidapet, Chennai - 600 015 on perusal of the records namely the FIR dated 21.09.2017, Sections alteration report dated 18.11.2017 and on perusal of the 161 statements of the witnesses and after hearing the submissions of objection by the learned Senior Counsel appeared for the accused/detenu about the pendency of the quash petition before the High Court, thereafter, on getting satisfied that prima facie grounds are made out for remanding the accused/detenu was remanded to judicial custody on explaining the grounds of arrest and legal aid. Further, the remanding Metropolitan Magistrate had recorded that there is no ill treatment has been made against the police and remanded the accused/detenu till 24.08.2018. It is further held that illegal or unauthorised detention or confinement is a sine qua non for entertaining a petition for writ of habeas corpus and the custody of the petitioner being in pursuance of a judicial act, it could not be termed as illegal.
27.The learned Advocate General had placed his reliance on the following Judgments of the Hon'ble Apex Court of India:
1)A.Lakshmana Rao Vs. Judicial Magistrate, First Class, Parvatipuram and others reported in 1970 (3) SCC 501;
2)ManuBhai Ratilal Patel through Ushaben Vs. State of Gujarat reported in (2013) 1 SCC 314;
3)Saurabh Kumar through his father Vs. Jailor, Koneila Jail and another reported in (2014) 13 SCC 436.
On the principle that a Writ of Habeas Corpus is not granted where a person is committed to Jail Custody by a Competent Court by an order which prima facie does not appear to be without Jurisdiction or wholly illegal.
28.Further contended that the detenu is presently in custody pursuant to the order of remand made by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai 600 015 and the order passed by the Magistrate remanding the accused to Judicial custody is valid in law and hence, the Writ of Habeas Corpus is totally mispleased and to be dismissed.
29.This Court on submission of the learned Senior Counsel for the petitioner and learned Advocate General for the respondents and on perusal of the materials filed and on scrutiny of the records of the Lower Court, with the conscious view to find out whether the detention of the detenu is as per the law established. It could be seen that there have been Arrest Memo through which the detenu signature and also a witness signature is found. Further, it could be seen from the request for the remand that there is a specific sentence stating that "ifJ bra;J ifJ bra;jjw;fhd fhuzj;ij tpsf;fp brhy;yp vjphpaplk; 19/05 kzpf;F vt;tpj tw;g[Wj;jYk; Jd;g[Wj;jYk; ,d;wp jhdhf Kd;te;J xU xg;g[jy; thf;FK:yk; bgwg;gl;lJ".
30.Likewise from the remand order, it is found that the accused/detenu has been represented by his counsel Mr.S.Akilesh Kumar, who had appeared and objected for the remand. Further, it is found from the remand report that the remanding Metropolitan Magistrate had perused the entire records, FIR, Alteration report, 161 statements and thereafter, on getting satisfied only remanded the accused/detenu.
31.Further in the remand report, it is found that there is a mention that "Hence prima facie satisfied. Hence grounds of arrest and legal aid explained. No complaint and ill-treatment against police. Remanded till 24.08.2018". In view of the above, and on the well-accepted principle that a Writ of Habeas Corpus is not be entertained when a person is committed to Judicial Custody or Police Custody by the Competent Court by an order which prima facie does not appear to be without jurisdiction or passed in a absolutely mechanical manner or wholly illegal and this Court finds that the Writ of Habeas Corpus is liable to be dismissed.
32.Suffice it to say that the petitioner is free to make an application for the grant of bail to the Court concerned who shall consider the same no sooner the same is filed and pass appropriate order thereon expeditiously. We without hesitation would state that there probably would be no better case for grant of Bail, however, bound as we are by the Legal Principles enshrined by the Hon'ble Supreme Court and on the above discussion we dismiss the present Habeas Corpus Petition as not maintainable.
33.Accordingly, the Writ of Habeas Corpus stands dismissed. Consequently, the connected Miscellaneous Petitions are closed. No costs.
[C.T.S.J.] [M.N.K.J.] 21.08.2018 Speaking order/Non-speaking order Index : Yes/No Internet: Yes/No ah
NOTE: REGISTRY IS DIRECTED TO SEND BACK THE RECORDS IMMEDIATELY TO THE LOWER COURT THROUGH SPL. MESSENGER.
To
1.The Commissioner of Police, Greater Chennai, Chennai.
2.Secretary to Government, Home Prohibition and Excise Department, Fort St. George, Chennai 600 009.
3.The Inspector of Police, E-2, Royapettah, Chennia 600 014.
4.The Superintendent of Police, Vellore Central Prison, Vellore 632 002.
C.T.SELVAM, J.
and M.NIRMAL KUMAR, J.
ah H.C.P.No.1695 of 2018 21.08.2018