If a magistrate is actually refusing remand, it has to be appreciated: Madras HC in Nakkheeran Gopal case

The Madras High Court on Thursday deprecated the trend of allowing remand mechanically in cases brought before Magistrate Courts. Justice N Anand Venkatesh observed that while refusing or allowing the remand, the Magistrate ought to apply his mind before passing the order.

The judge made oral observations to this effect while hearing the case filed against a Magistrate’s refusal to remand RR ‘Nakkheeran’ Gopal, Editor of the Tamil News Magazine Nakkheeran.

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, on a complaint by T Sengottaiyan, Deputy Secretary to the Governor. However, an Egmore Magistrate Court refused to remand Gopal the same day.

Interestingly, the Magistrate passed the order refusing remand after hearing the views of N Ram, Chairman of the Hindu Group of Publications, on behalf of Gopal.

The case has thrown up some interesting topics for debate at the High Court, ranging from whether outsiders can be permitted to argue before the Court, the limits of free speech and expression, and the exercise of remand jurisdiction.

Arguments on Thursday were only made by Special Public Prosecutor A Ramesh, for the state.

Remand Jurisdiction must involve application of mind

During the course of Thursday’s hearing, Justice Venkatesh made a general observation that the fact that the Magistrate had actually refused to allow remand can be appreciated, given that it is a rare occurrence.

He noted that Magistrates frequently allow remand for cases coming up before them in a mechanical manner, despite having been instructed to apply their mind in such matters right from judicial training days. In this context, he remarked,

“One thing came to mind…if a magistrate is actually refusing remand [which is rare], it has to be appreciated.“

He proceeded to opine that the culture of applying one’s mind before passing remand orders has to seep into the system, so that the police is discouraged from thinking that if they produce anyone before the Magistrate court, a remand would automatically ensue. A message should go out so that a Magistrate is encouraged to refuse remand where there is no material to allow the remand, he said.

He added that he has only made the observation out of interest for the judicial institution. It is not a comment on the merits of the instant case.

SPP A Ramesh submitted that he was in full agreement with the Court’s observations concerning application of mind before passing orders. However, he emphasised that the Magistrate court should also detail the reasons why it was not satisfied that the material before it warranted a remand. There ought to be a speaking order on whether there is material to allow or refuse the remand, he said.

Can outsiders be permitted to argue?

In an earlier hearing, the High Court had queried how Chairman the Hindu Publishing group, N Ram was allowed to argue before the Magistrate on behalf of Gopal, given that he was neither party-in-person nor the counsel for Gopal.

In yesterday’s hearing, SPP Ramesh also raised this point, arguing that the court cannot hear a person who was not concerned with the lis. He pointed out that the Supreme Court has also on earlier occasions warned that the court is not a public platform for anyone to come make arguments. Outsiders may be called in for assistance only in exceptional cases such as when an expert’s opinion is required, as allowed under the Indian Evidence Act.

Can the Magistrate refuse remand while directing the execution of a bond?

SPP Ramesh also argued that the Magistrate court’s order refusing remand was erroneous in view of the fact that he has, simultaneously, also asked Gopal to execute a bond. The Magistrate cannot blow hot and cold at the same time, he remarked.

It was pointed out that remand precedes the execution of a bond under the provisions of the Code of Criminal Procedure, particularly Section 167. Refusing remand while insisting on the execution of a bond exposes the Magistrate’s non-application of mind, said Ramesh. Therefore, the order is bad in the eyes of law.

On Freedom of Speech and Expression

On the case brought against Gopal, the SPP argued that under the guise of free speech and expression, a person who intends only to repeatedly disturb another (in this case, the Governor of Tamil Nadu) and prevent him from discharging his duties, should not be allowed to make wild allegations with no foundation.

The pending case against Chartered Accountant S Gurumurthy was mentioned to highlight that such allegations are viewed seriously. Reference was also made to the 1994 Auto Shanker case to emphasise that only matters that are of public record should be commented upon. The Court also observed that such privacy rights are now reinforced following the recent Puttaswamy judgment.

On the Magistrate refusing remand before investigation is completed

It was hinted that the controversial Nakkheeran articles may have been aimed at compelling the Governor against continuing to perform his functions in the state. It was in this context that Section 124 of the Indian Penal Code (on assault of the Governor etc.) was levelled against Gopal. However, Ramesh pointed out, this can be properly probed only once the investigation is completed.

In this case, Ramesh argued that the Magistrate did not have enough material before him to dismiss the case, given that the investigation into the case was not completed. Referring to a Supreme Court judgement passed on Wednesday, he emphasised that the investigation ought to be completed before the Court looks into its merits.

High Court must be careful before interfering with orders of Subordinate Courts

While hearing the matter, Justice Venkatesh also orally remarked that the High Court should be circumspect in interfering with the lower court’s order in any case, lest it appear that there is no need for the lower court judges to apply their minds to authoritative decisions.

If the High Court were to casually interfere in lower court orders, Justice Venkatesh went on to note, it may lead to more lower courts being inclined to pass mechanical orders.

The case has been listed for further arguments next Tuesday at 4 pm. Inter alia, Justice Venkatesh has also asked SPP Ramesh to aid to Court on whether it is mandatory to remand the suspect, even if a prima facie case for Section 124 of the IPC is established before the Court.