Rubt Mhc Advt: Sidhha Dr. Thanikachallam case. Whether the Chief Metropolitan Magistrate, Chennai District denying him Bail and granting 6 days Police Custodial Interrogation is justified or not?
The complainant is S. Ganesh Director of Indian Medicine and Homeopathy Department. The FIR accuses that the accused has committed the offences under Section 188 IPC r/w Sec 3 of the Epidemic Diseases Act, Section 505(1)(b), 153-A of I.P.C. and Section 54 of Disaster Management Act. The Police opposed the Bail filed petition for Custodial Interrogation of Siddha Thanikachallam and he filed Bail Petition.
Bail vs- Custodial Interrogation. In the former the fundamental rights under Article 21 of the Constitution of India is in stake and in the later both the Constitution of India and Human Rights laws are in stake.
Does Siddha Thanikachallam deserve to be Jailed or Bailed? Bail is the rule Jail is an exception will this principle attract in this case?
Where the CMM failed? The CMM failed to apply her judicious mind. In a case under S. 188, IPC the role of a Police Officer will be confined only to preventive action as stipulated under S. 41, Cr.P.C and he cannot register an FIR even though S. 188 IPC is a cognizable offence. In this case who promulgated the order is it the complainant? or any other competent public servant? If the complainant has not passed such an order can he be the complainant instead of the person who passed the order of promulgation? If that is so he cannot be the complainant and therefore no court could take cognizance of this complaint at the stage of Final Report for Trial.
In order to constitute an offence under Section 188 of IPC a mere disobedience of an order is insufficient but the disobedience should necessarily lead to consequences causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray. What are the consequences that arose out of his speech made in You Tube, Face Book, Whatsapp Instagram etc? It’s a fact that his speech never had any impact in the minds of people of Tamil Nadu and none of the ingredients of 188 of IPC is attracted therefore the CMM ought to have released him on bail.
According to the Police the accused has said “How many people are you going to kill? Already 2 lakhs people have died. How many people are you going to kill? If there is no medicine tell it’s not there. I am asking you to which religion you belong? Did Jesus, Allah and Esan tell like that? Common people rise up and ask? Whether this utterance attracts Section 505(1)(b) of IPC? Is this statement amounts inciting the people of Tamil Nadu to wage a war against the government or revolt against it? Did his utterance disturb the public tranquility and caused riot or affray? Did his speech cause any danger to human life, health or safety? People heard his speech in visual and social media but it never had any adverse impact on them and Tamil Nadu is under lock down and peaceful. Under such circumstances the CMM should have granted Bail to the accused.
What is153-A of IPC? Is the utterance of accused to which religion you belong? Did Jesus, Allah and Esan tell like that? Common people rise up and ask? Whether this utterance by accused amounts to promote enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony? Dir the utterance led to commit any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility? His utterance in no way attracted the provisions of Section 153-A of IPC and therefore the CMM should have granted bail to the accused.
The Section 54 of Disaster Management Act contemplates punishment for false warning whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude leading to panic. Whether his statement as mentioned above attracts or not? Is his statement is false warning? It is an indisputable fact that COVID 19 is a global disaster its magnitude is extremely severe and the whole world is in grip of panic and fear death. This provision is also not attracted and the CMM therefore could have granted Bail.
Investigation vs. Custodial Interrogation. In the cases of cognizable offences the investigation is carried out by the Police under section 156 Cr.P.C but in cases non-cognizable offences the Police cannot investigate without the order of a Magistrate having power to try such an offence and Section 155(2) Cr.P.C deals with it.
Whether Metropolitan Magistrate had remanded Siddha Dr. Thanikachallam mechanically or applied his judicious mind to pass the remand and what Section 167(1) of Cr.P.C says? A reading of it shows that an Investigating Officer can’t ask for remand mechanically before the Court but has to make out a case that there are reasonable grounds to believe that that the information accusation has a prima facie case and that investigation is impossible to be completed within 24 hours as contemplated under Section 57 of Cr.P.C. It is clear that remand is not an automatic discharge of duty but judicious application of mind is essential whether accusation attracts the ingredients of the provisions to which he has been accused and when the accused in remand period of 15 days the Police should seek for custodial interrogation.
In a case where an accused person is on Bail with the condition that he should report before the Investigating Officer for enquiry it becomes an investigation. If there be any interrogation by the police while on bail it is not custodial interrogation but it is mere interrogation without police custody.
Custodial Interrogation is legal under section 167(2)(b) of Cr.P.C and the Magistrate is empowered to release the accused from judicial custody to Police custody. In order to secure custodial interrogation the Accused must be in the custody of the Police and the Investigation Officer should file an affidavit and make out a case for Custodial Interrogation and this method is adopted to get more information for discovery of the truth of commission of offence, who are all involved in it and where are all they and what’s the role played by each one of them and in execution and completion of the offence. The court may accept or reject the materials collected during such custodial interrogation and putting them to judicial scrutiny.
The reasons assigned by the Police for custodial interrogation before the CMM is flimsy. The reason for custodial interrogation is to find out the capacity of the accused to run the clinic, his registration, license and other provisions to run his Siddha Research Centre and other mandatory requirements other infrastructure of his hospital, the authenticity of his manufacturing unit in Chennai and the brain behind this move. The case against accused is under Section 188 r/w Section 3 of Epidemic diseases Act, 505(1)(b), 153-A and 54 of Disaster Management Act and they do not warrant for custodial interrogation and this could have been done in the course of investigation while on bail.
The Courts below usually will give custodial interrogation under Section 167(2)(b) Cr.P.C in gave and gravest criminal offences like involving in Terrorism, Bank fraud, Money Laundering, Drug related offences, offences affecting the economy of the country counterfeit notes etc but not in the present case
The Police seeking Custodial Interrogation of the accused is unjustified and it’s just to mentally and physically harass and bring disrepute to his name and fame. In any event the CMM has erred and never applied the mind judiciously and mechanically granted the order of custodial interrogation.
Now assuming that Siddha Dr. Thanikachallam is not a qualified doctor in Siddha before and after arrest the executive and judicial authorities should have kept in their general knowledge that Thomas Alava Edison had never been to school but he invented 20 things. Wright Brothers claimed that they have invented flying machine but failed several times before the public but the US government did not arrest them but encouraged them to succeed in their mission and ultimately they succeeded today’s aero plane. Many famous inventors never had any basic degree in science but the invented and discovered many scientific things which we are using. The Tamil Nadu Government should have given an opportunity to the accused to prove his case by way of clinical trial as every vaccines and medicines we are using now is marketed only after clinical trial. In the absence of vaccine for COVID 19 accused claim should have been put on trial. Even if his medical discovery fails still he cannot be accused of having committed any offence because he never marketed them to the public with a label it that it prevents and cures COVID 19. CMM’s order of denial of Bail to the accused Siddha Dr. Thanikachallam and transferring him from judicial custody to Police custody for a week for custodial interrogation is judicially incorrect and it is not based on sound judicial principles and not in accordance to the various Judgments of the Supreme Court and Madras High Court. It expresses its non application of judicious mind, capricious and mechanical order.
[5/13, 20:04]
