Accused granted bail to attend wife’s funeral

Granting the interim relief to R Gopal, the editor of Nakkheeran, Justice N Anand Venkatesh observed it was the first case after the country’s independence wherein the court has been called upon to consider whether a publication by itself will have the effect of overawing a Governor so as to prevent him from exercising his lawful powers and duties.

Hearing a case filed seeking to quash the case filed against Gopal under Section 124 of the IPC, Justice Venkatesh stayed all proceedings before the MM Court II in Egmore here and said two questions of laws have to be decided in the matter. The first was whether the FIR and materials collected by the investigating officer made out an offence under Section 124. The second was whether the lower court was right in taking cognisance of the final report filed by police.

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. To understand the issue even better, Section 124 has the ingredients similar to Section 353 (Assault or criminal force to deter public servant from discharge of his duty). The latter, which applies to public servants, is a generic version of Section 124, he said.

He further said the Supreme Court while dealing with a case under Section 353 had said criminal force or an assault could not be said to have occurred because of publication of a post in the Facebook, however malicious it may be.

He then referred to the second issue raised by the counsel for petitioner that the lower court ought not to have taken cognisance of the final report filed by the police. The petitioner contended Section 196 of the Code of Criminal Procedure makes it mandatory that no court shall take cognisance of any offence punishable under Chapter VI or under Section 505 of IPC except with the previous sanction of the Centre or the State.

Justice Venkatesh said though the government submitted sanction had been granted, there was no prima facie material which showed application of mind by the lower court with regard to the sanction at the time of taking cognisance. Holding that prima facie case was in favour of the petitioner, he granted the stay and posted the matter for further hearing to July 8.

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The Madurai bench of the Madras High Court, on sidestepping its jurisdiction, granted three days leave to a remand prisoner to attend his wife’s funeral after taking a humane view that one cannot ignore the fact that the accused is entitled to perform the last rites of his deceased wife.

Mohamed Shalin, is confined as a remand prisoner in Palayamkottai Central Prison in Tirunelveli. He is an accused in several criminal cases, but is yet to be convicted. Originally, he was remanded in judicial custody by Chief Metropolitan Magistrate, Bengaluru, for offences under Unlawful Activities (Prevention) Act. He was transferred from Parapana Agrahara Prison to Palayamkottai prison to face trial on the file of the Chief Judicial Magistrate, Nagercoil.

Following his wife’s death, his sister Rahmath Nisha moved a writ petition seeking for a direction to the Superintendent of Prison, Central Prison, Palayamkottai, to grant her brother three days leave to attend his wife’s funeral by considering her representation on June 1 through email.

Justice GR Swaminathan, before whom the plea came up, observed that it is true that Shalin is not a convict, therefore the question of granting leave will not arise, said, “As rightly pointed out that by the Additional Public Prosecutor, this court will not have jurisdiction to grant bail also. However, one cannot ignore the fact that Shalin is entitled to perform the last rites of his deceased wife.”

Justice Swaminathan then directed the prison authorities to take the remand prisoner Shalin to his house at Melapalayam, Tirunelveli and permit him to perform the usual customary rites. The judge also allowed Shalin to remain with his three children and close relatives for about an hour, after which he directed his return to Central prison.