What Madras HC held on Arrest and Remand while upholding Magistrate’s refusal to Remand Nakkeeran Gopal

The Madras High Court on Monday upheld the Egmore Magistrate’s refusal to remand RR ‘Nakkeeran’ Gopal, Editor of the Tamil News Magazine Nakkeeran following his arrest on charges of sedition last month.

Gopal had been arrested last month after his magazine published articles alluding to a link between the Tamil Nadu Governor and Nirmala Devi, a college lecturer accused of having lured college girls into prostitution. However, an Egmore Magistrate Court refused to remand Gopal the same day.

Given the amount of controversy and crowd the case attracted, Justice Anand Venkatesh recorded his appreciation for the Magistrate’s composure in passing the order refusing the remand.

“… 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.“

At the outset, the Court noted that the case was a first, in that a publication has not been known to attract sedition charges under Section 124 of the Indian Penal Code (IPC).

“The issue involved in this case is one of a kind in the 72 years of independent India, where a publication has been called in question and it has been made as a premise to register an FIR for an offence under Section 124 of IPC.“

The Court ultimately found that there was no need to interfere with the order of the magistrate, given that the arrest was made in violation of the law laid down in DK Basu’s case, as well as Sections 41A and 41B of the CrPC. As noted in the judgment,

“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 … the gist of the offence alleged to have been committed by the accused …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 … 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.“

While this was the case, the Court found that the Magistrate was justified in refusing to remand Gopal. Further, Justice Venkatesh pointed out that there was no error in ordering that Gopal execute a bond even though remand was not allowed.

It had been argued that Section 59 CrPC requires the Magistrate to pass a special order recording reasons if he were to order an accused to furnish a bond while also discharging him from an illegal arrest.

However, the Court pointed out that the Magistrate had ordered Gopal’s release on the ground that the police had failed to present sufficient material to justify his arrest at the time, rather than finding the arrest illegal per se.

“The learned Magistrate has in fact perfectly applied his mind and he has given scope for the police to collect further materials and for that purpose has got an undertaking from the petitioner to appear for interrogation as and when required. The learned Magistrate has not closed his mind and the openness in his approach is very clear from the fact that he has given liberty to the investigating officer to again approach the Court after collecting sufficient materials.

The learned Magistrate also ensured that the respondent appears for interrogation before the police and also appear before the Court at the time of hearing. This Court does not find any uncertainty in the procedure adopted by the learned Magistrate and the learned Magistrate has in fact adopted the correct procedure.“

Another controversy which was put to rest by the Court was whether the Egmore Magistrate was justified in allowing N Ram, Chairman of the Hindu, a non-advocate in making submissions on behalf of Gopal. After the query was raised, the Magistrate informed the Court that he had called on N Ram to make submissions on limited aspects concerning freedom of speech and expression, given the unique nature of the case.

In this regard, the Magistrate had exercised his discretion under Section 32 of the Advocate’s Act, 1961. The High Court found that there was no error on the part of the Magistrate in exercising his discretion under the said provision to call on non-advocates to speak in Court.

“It is clear from this provision 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.

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.“

Since separate petitions challenging the sedition charges are pending before the High Court, Justice Venkatesh did not delve into an elaborate discussion on the applicability of Section 124, IPC.

However, it was noted that in Manik Taneja and another v. State of Karnataka and another, the Supreme Court had already noted that neither criminal force nor assault (i.e. ingredients of the offence of “sedition” under Section 124, IPC) could be said to have occured by a publication (in that case, a a Facebook post), however malicious it may be.

This observation had been made in the context of Section 353, IPC which penalises those who prevent public officials from discharging their duty through criminal force or assault. However, since Section 124 is couched in similar terms, the Court noted that the police could not have been certain that Gopal had committed the offence a day after the FIR was registered.

“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.

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.“

Arguments in the case were made by Special Public Prosecutor A Ramesh for the state. Advocates PT Perumal and P Kumaresan made arguments for Nakkeeran Gopal.

Notably, while rendering the verdict, the High Court also reiterated key principles concerning arrest and remand of persons under the CrPC. These principles include the following.

On Arrest by the Police

In all cases where the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that has led him to conclude that arrest is necessary for the purposes of investigation.
If the police decides not to arrest an accused, notice can be issued under Section 41A CrPC within two weeks of the case being instituted, after forwarding a copy to the jurisdictional magistrate. The time for serving notice may be extended by the superintendent of police for recorded reasons
The Police should follow the guidelines of the Delhi High Court in Amandeep Singh Johar v State of NCT Delhi as regards the format and contents of the notice under Section 41A and the mode of its service. These guidelines are to be followed until appropriate amendments to this effect are made to the CrPC. The Director-General of Police has been ordered to direct all station house officers to ensure compliance with these guidelines.
If the police does not require the presence of the accused for interrogation, notice under Section 41A of the CrPC need not be issued.
An accused can be arrested if he refuses to cooperate with the police as required under Section 41, CrPC
If the accused cooperates with the police, he should not be arrested unless the police finds it necessary. In such cases, the conditions precedent in Section 41 CrPC must be complied with. More particularly, in addition to the police having reason to believe that the accused has committed an offence, one or more contingencies in clauses (a) to (e) of Section 41 (b) (ii) must exist.
Section 41(1)(b)(ii) lays down that arrest may be carried out if it is necessary to (a) prevent the accused from committing any further offence or (b) for proper investigation of the offence or (c) to prevent the accused from tampering with the evidence or (d) to prevent the accused from winning over witnesses through inducement or threat or (e) to secure his presence before the Court.
The police officer must be able to objectively demonstrate the necessity to arrest on the touchstone of the requirements set out in Section 41(1)(b) of the Code
A checklist containing specified sub-clauses under Section 41(1)(b)(ii) of the CrPC along with the reasons and materials which necessitated the arrest should be forwarded to the Magistrate authorized to remand the accused. This would ensure that the Magistrate authorizing remand under Section 167 Cr.P.C is in a position to effectively assess the material on the basis of which further detention of the accused is being sought.
Failure to adhere to these rules would render the police liable for departmental action as well as contempt of Court

On Remand by the Magistrate

The instant case has prompted the Court to reiterate that since remand is the fundamental judicial function of a Magistrate,

“While remanding the accused, it is obligatory on the part of the Magistrate to apply his mind to the facts of the case and not to pass remand order automatically or in a mechanical fashion.“

The Court also noted the following pertinent principles to be borne in mind by Magistrates while dealing with remand cases.

At the stage of producing an accused for remand, the Magistrate can only examine the record to see whether there exists some material to justify a remand. The Court noted, “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.“
Mechanically reproducing in the case diary all or most of the conditions contained in Section 41 CrPC will not suffice. The Court emphasised that such mechanical reproduction would plainly be a subversion of the law, and is a practice to be strongly deprecated.
The Magistrate must ensure that the requirements of 41 (1)(b) are satisfied. If these are not complied with, the magistrate would be justified in refusing remand, therefore avoiding unnecessary arrest and allowing expeditious investigation.
The power of remand under Section 167 CrPC is essentially a judicial function. The very purpose of authorizing remand under Section 167 CrPC arises on account of the fact that investigation cannot be completed within 24 hours. The Magistrate is, therefore, required to peruse the report of the police, containing the checklist and the reasons and materials forwarded by the police officer, and record its satisfaction thereon, before authorizing detention.
While no elaborate order is required to be passed in allowing or refusing remand, the magistrate should briefly set out the reasons for his decision. This, in turn, would enable a higher court to judicially review the order and see that the Section 167 CrPC jurisdiction has been appropriately exercised, in the event of an appeal.
The practice of passing non-speaking orders of remand and mechanically extending the same is illegal and must be avoided.
A Magistrate would also be liable for departmental action by the High Court if he authorises detention without recording reasons.

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Madras High Court

Arrest

Remand

Nakkheeran Gopal

DK Basu

Nakkheeran