‘The issue involved in this case is one of a kind in the 72 years of independent India. Here a publication has been called in question. And it has been made as a premise to register an FIR for an offense under Section 124 of IPC.’

The Madras High Court on Monday rejected the state's plea challenging the order of Metropolitan Magistrate Court, Egmore. Previously MM Egmore rejected the request to remand 'Nakeeran' Gopal who was arrested for publication of allegedly fake and derogatory news about the Governor of Tamil Nadu in his bi-weekly Tamil magazine Nakeeran.

Madras HC Upholds Order Rejecting Remand Of 'Nakeeran' Gopal Accused Of Publishing Fake & Derogatory News About TN Governor

 

The state had approached the high court challenging the order of the Magistrate rejecting the remand of Nakeeran Gopal, who was produced by the police officer after arresting him for an offense under Section 124 IPC. It was alleged that a fake/derogatory news about the Governor was published in periodicals published in Nakkeeran between April and September 2018.

Request to remand 'Nakeeran' Gopal

Justice N Anand Venkatesh observed that 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 offense under Section 124 of IPC.

Police should not have resorted to arresting on the very next day after registering the FIR

Examining the case records, the court upheld the Magistrate's order rejecting the remand and observed that the process of arrest carried out by the Police is not in strict compliance with the guidelines given in the DK Basu case and the provisions of the Code of Criminal Procedure. The court also noted that the arrest intimation form does not state anything about the reason for the arrest or the materials seized by the police or the name of the police station which is carrying out the arrest and the vital material facts are missing in the arrest intimation form.

It further said: "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. On a prima facie consideration of the allegations made in the complaint, this Court is of the considered view that a lot of intellectual debate is required in this case in order to come to a conclusion as to whether a publication by itself can attract the provisions of Section 124 of IPC. While such a fundamental question as to whether an offense under Section 124 of IPC looms large, the petitioner police should not have resorted to arresting on 09.10.2018, the very next day after registering the FIR."

The court also said: "Nowhere in the complaint, it is stated whether His Excellency the Governor of Tamil Nadu was appraised about the publication made in Nakkeran and that he was satisfied that the publication prevents him from exercising his lawful powers and duties. The entire complaint reads as if the concerned officer was satisfied that the contents of the publication are fake/derogatory. The complaint extracts certain articles from the publication and proceeds to conclude that the same amounts to an offense under section 124 of IPC."

Another issue was regarding the Magistrate action in directing the accused to execute a bail bond for Rs.10,000 on condition that he shall appear for interrogation before the police and also before the court during hearings.

The state contended that this directive, after having rejected the remand on the ground of insufficient materials, clearly demonstrates the uncertainty in the mind of the Magistrate. In this regard, the court said: "Once an accused is arrested by a police officer, he shall not be discharged except on his own bond or on bail or under special order. If the arrest and detention of the accused cannot be said to be illegal, he can be discharged either on his own bond or on bail. Only when the arrest is found to be illegal, a special order should be passed as contemplated under Section 59 of CrPC. In the instant case, the learned Magistrate did not find the arrest to be illegal."

Appreciates Magistrate For Maintaining Equipoise In Charged Atmosphere

While upholding the order, the bench also recorded its appreciation to the Metropolitan Magistrate Court, Egmore. It said: "Before parting with this case, 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."

Visit: https://www.lawyersarbitrators.com/ for Arbitral Matters in Chennai, Tamil Nadu, India.

News Courtesy:  Livelaw "

"Madras HC Upholds Order Rejecting Remand Of 'Nakeeran' Gopal Accused of Publishing Fake & Derogatory News About TN Governor"