Sidda dr Thanickachalam custody quashed by mhc
The state public prosecutor argued that it is very serious in nature the video post by the accused will provoke the general public and asked for dismissal, the honble court upon hearing both side arguments was pleased to set-aside the order passed by the learned cmm and ordered for 4 days custody and to consider the bail petition on the same day after custody.
[5/14, 12:34] Sekarreporter 1: MEMORANDUM OF CRIMINAL ORIGINAL PETITON
(UNDER SECTION 482 OF Cr.P.C)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Criminal Jurisdiction)
Crl.O.P.No. of 2020
Against
Crl.M.P. No. 71/2020
(On the file of chief Metropolitan Magistrate court Egmore-chennai-7)
K.Thiruthanikasalam, M/50,
S/o Kaliyaperumal,
No.600/8, Azhagiri samy salai,
Kalaignar Karunanidhi Nagar,
Chennai – 600078 …Petitioner/Respondent/ Accused
-V/s-
The State Rep by
Inspector of Police,
Cyber crime cell
Central Crime Branch, Team – 13,
Vepery, Chennai – 7
Crime No-156 of 2020…Respondent / Petitioner/complainant
CRIMINAL ORIGINAL PETITION FILED UNDER SECION 482 OF CRIMINAL PROCEDURE CODE:
The address for service and all processes and notice is on the counsel for the Petitioner is M/s R.Krishna Kumar office at No.61/40, Thiru Sennari Manor, Pantheon road, Egmore, Chennai-600 008.
The address for service and all processes and notice is on the counsel for Respondent in above.
The Petitioner before this Hon’ble Court is the Respondent in Crl.M.P. No. 71/2020 in Crime No.156 of 2020.
The Crl.M.P No. 71/2020 was preferred by the respondent against the petitioner seeking police custody under section 167 (2) (b) of Cr.P.C and Rule 6 (6) of the Criminal Rules Of Practice,2019 for 7 days.
The Brief facts of the case is as follows:-
The petitioner submits that the respondent has foisted a case against the petitioner for the alleged offence under sections 188, 505(1)(b), 153A of I.P.C & Section 3 of Epidemic Disease Act & Section 54 of Disaster Management Act, 2005 in Crime No. 156 of 2020 on the file of the Respondent.
The Petitioner submits that the Petitioner was arrested by the respondent herein on 06.05.2020 and remanded to judicial custody on the same day.
The Petitioner submits that the case of the Prosecution, the Petitioner has posted a video on social media saying that he has found a cure for coronavirus that threatens the world and the Petitioner had also spoke of challenging the medical industry to cure coronal patients.
The Petitioner most humbly submitted that, the Petitioner is running a hospital in the name and the style of “RATHNA SIDDHA HOSPITAL & HERBAL RESEARCH CENTER” situated at arumbakkam, Chennai and the Petitioner has 25-year of vast experience in field Siddha and Ayurvedic medicines. The Petitioner further submits that through his phenomenal research, the Petitioner has discovered the drug to cure the problem of autism by following the siddha herbal medical treatment and many other treatments such as Vitiligo care, Heart care, Migraine care, Diabetes care, cancer care, Hepatitis care, renal disease care, etc.
The Petitioner most humbly submits that, on 28th of January of 2020 the Petitioner Speaking to ANI, the Petitioner said: “We have formulated a medicine from an extract of herbs. It is very effective to cure any type of viral fever. Coronavirus has no medicine. In China’s Wuhan where Coronavirus has claimed over 50 lives, experts have no idea how to cure the disease. Our herbal extract medicine is used to treat dengue, multi- organ fever and acute liver fever. We want to tell the World Health Organization (WHO) and the Chinese government that our medicine is very effective in treating multi-organ failure in corona fever condition”.
The Petitioner most humbly submits that, section imposed against the Petitioner does not attract any crime as alleged by the respondent.
The petitioners submit that he had no intention to commit any crime and he had been falsely implicated in the above crime based on alleged. The petitioner further submits that he is innocent and had not committed any offence and a false case has been foisted against the petitioner without any basis or reasons.
The petitioner submits that he is respectable law abiding citizens and will not evade due process of law and he is ready to abide any condition imposed against him.
The petitioner submit that even the Ayush ministry has issued certain suggestion of intake of natural medicines in order to prevent the infection. So as the petitioner being in the field of natural medicines for the past several decades has vast experience in preventing and curing such diseases has requested the government to take his valid suggestions in order to prevent further infection in the present pandemic situation.
The petitioner further submit that the averments contained in the Affidavit in support of the Crl.M.P.No.71 of 2020 are false, frivolous and vexatious and wholly without any basis.
Without considering the merits of the case and submissions made by the petitioner herein and with misconstrued facts, the learned Chief Metropolitan Magistrate has allowed the petition for grant of custody for a period of 6 days by virtue of an order dated 12/05/2020 accepting the contention and assumption of the respondent that some vested interest in posting such videos and the custody of the petitioner was given to the respondent for a period of 6 days though while the arguments the learned public prosecutor has sought only 5 days custody instead of 7 days mentioned in the petition. There is no prima facie in granting an order of custody after full fledged investigation conducted by the respondent, which was accepted by the investigation officer in his affidavit.
Aggrieved by the order of the learned Chief Metropolitan Magistrate, Egmore in Crl.M.P. No. 71 of 2020 in Crime.No. 156/2020 in allowing the miscellaneous petition, the petitioner is constrained to file the present ORIGINAL PETITION, challenging the correctness and legality of the order on the following amongst other :
GROUNDS
a. It is humbly submitted that the learned Magistrate has failed to consider that the petitioner / Alleged to be accused has no intent to cause disrepute to the state as alleged by the Respondent herein, the Alleged to be Accused/ Petitioner has not committed any such offences as alleged by the Respondent in the first information report (or) in the Petition for Custodial interrogation.
b. The Petitioner /Alleged to be accused submits that the learned magistrate failed to consider that the Alleged to be Accused/ Petitioner has posted a video on social media saying that there is a prevention and cure for corona virus that threatens the world through siddha and natural medicines.
c. The Petitioner/Alleged to be accused most humbly submitted that he is running a hospital in the name and the style of “RATHNA SIDDHA HOSPITAL & HERBAL RESEARCH CENTER” situated at arumbakkam, Chennai and the Petitioner has 25-year of vast experience in field Siddha and Ayurvedic medicines. The Petitioner/ Accused/ further submits that through his phenomenal research, the Accused/Respondent has discovered the drug to cure the problem of autism by following the siddha herbal medical treatment and many other treatments such as Vitiligo care, Heart care, Migraine care, Diabetes care, cancer care, Hepatitis care, renal disease care, etc.
d. The learned Magistrate failed to consider that the Petitioner / Accused, on 28th of January of 2020 the Accused/Respondent Speaking to ANI, the Respondent/Alleged to be accused said: “We have formulated a medicine from an extract of herbs. It is very effective to cure any type of viral fever. Coronavirus has no medicine. In China’s Wuhan where Coronavirus has claimed over 50 lives, experts have no idea how to cure the disease. Our herbal extract medicine is used to treat dengue, multi-organ fever and acute liver fever. We want to tell the World Health Organization (WHO) and the Chinese government that our medicine is very effective in treating multi-organ failure in corona fever condition”. Based on the above statement made the entire episode of the alleged crime got initiated.
e. The learned Magistrate failed considers that the sections of crime imposed against the Accused does not attract at all.
f. The learned magistrate failed to consider that the Accused / Petitioner was not claiming publicity and Advertisement and false claims as alleged by the Respondent. The Accused/ Petitioner is in the field of Siddha Since 25 years from extracting herbs learnt the same hereditarily from his fore fathers and father who is in the field of Siddha. The same is certified to be genuine by various authorities annexed herewith and the Petitioner/ alleged to be accused is a respectable gentleman in the society and has cured many thousands of patients suffering from ailments of heart diseases, diabetes, malaria, dengue, blood pressure and so.
g. The learned Magistrate failed to consider that the Petitioner/ alleged to be accused has no intention of committing any offence as alleged, the video was parted only with an intent to create awareness and to give treatment to the infected people by ayurveda and Siddha method, which cures all the diseases such as the present pandemic.
h. The learned Magistrate failed to consider that the Respondent has not even conducted preliminary enquiry with the Petitioner pre-arrest but has wrongly understood as if the accused is creating false publicity and thereby violated the orders of this Hon’ble court in Crl.O.P. 26888 of 2018 orders passed by justice Anand Venkatesh and their own circular NO.4/DGP/SECY/2019 -35 on 12.03.2019 issued by the Director General Of Police Punishment less than 7 years does not require arrest and 41-A notice should be issued.
i. The learned Magistrate has failed to consider that the statement delivered in the Video is only out of anguish that so many valuable life is lost when Siddha and Natural medicine has got all essentials to cure the pandemic diseases and create immunity of diseases being infected and the statements of the Petitioner has no intention to damage or to bring ill-repute to the state authorities or to create panic among the general public; the Petitioner has not provoked anybody out of his speech as alleged by the Respondent. The speech and intention is one and only to cure the disease by the Siddha and Natural medicine.
j. The learned Magistrate has failed to consider that the Petitioner/Alleged to be accused have no malafide or misleading intention as alleged by the respondent and the videos have not created any disastrous consequences and there is no threat to public safety.
k. The learned Magistrate failed to consider that with regard to operation of the clinic the petitioner has been certified by various authorities which is enclosed herewith and my wife is a Registered Practitioner.
l. Hence, in the above circumstances the police have admitted that Petitioner/alleged to be accused have made confession in para No. 6 of the Affidavit filed by the investigation officer though the petitioner has not confessed and moreover no other offences are made out than posting the video for creating awareness among the public and to cure the general public and to protect and prevent them from pandemic diseases.
m. The Custody Petition filed by the Respondent in Crl.M.P.No.71 of 2020 is not maintainable in law or in facts, since the Respondent himself has sworned in his affidavit in Para No.4 and 6 that he has conducted investigation in presence of 2 independent witness supported by a confession statement, hence the petition for custody filed by the complainant is illegal, unnecessary and ought to have been dismissed in limine.
n. The learned magistrate has observed in para 3 of the order as if the petitioner has challenged the Medical industry which is against the submissions and case of the petitioner, so the facts are totally misconstrued which lead to pass the present impugned order.
o. The learned public prosecutor has sought only 5 days custody while arguing the case, but the learned magistrate has granted 6 days custody to the respondent which goes contra to the arguments of the prosecution. Hence the impugned order is absolutely vague and non speaking.
p. The learned Magistrate failed to consider the submission made by the petitioner that he his willing cooperate with the investigation as when required and further undertook that he will not hamper or tamper the evidence.
q. The learned judge failed to consider the constitution bench judgment Gurubaksh singh sibbia vs. state of Punjab, that embodied the principle that presumption of innocence is always in favour of the accused and the guilt of the accused is yet proven by trial which is the heart of fundamental right guaranteed under the constitution of india Article 21.
r. The supreme court repeatedly held that the custodial interrogation should be refused in cases were the accused is ready to co-operate with the process of investigation, held in Siddharam Mhetre v. State of Maharashtra (2011).
s. The conclusions are based upon the finding that there was no apprehension that the accused would flee, or that he would try to influence the witnesses. If so the accused attempts to influence the witness or hamper or tamper evidences, the law will always be against the accused. In the present case no such apprehension by the investigation officer or the crime registered is not so offensive or any heinous crimes. All these aspects were not gone in to by the learned magistrate which lead in misconception and the resulted the impugned order. Hence liable to be set-aside at the threshold.
For the reasons stated above, it is most humbly and respectfully prayed that this Hon’ble court may be pleased to:
a. Grant stay towards all further proceedings of the impugned order dated 12.05.2020 in Crl.M.P.No. 71 of 2020 passed by the leraned Chief Metropolitan Magistrate, Egmore pending the Criminal original Petition,
b. To call for the records and Set-aside the impugned order dated 12.05.2020 passed by the learned Chief Metropolitan Magistrate, Egmore in Crl.M.P. No. 71 of 2020 and pass such or other order or orders as this Hon’ble court may deem fit and proper in the interest of justice and thus render justice.
Dated at Chennai on this 13 th day of May, 2020
COUNSEL FOR ACCUSED/ RESPONDENT
Note;
Petitioner in central Jail Puzhal
MEMORANDUM OF CRIMINAL MISCEALNEOUS PETITON
(UNDER SECTION 482 OF Cr.P.C)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
( Criminal Jurisdiction)
Crl.M.P.No. of 2020
in
Crl.O.P.No. of 2020
K.Thiruthanikasalam, M/50,
S/o Kaliyaperumal,
No.600/8, Azhagiri samy salai,
Kalaignar Karunanidhi Nagar,
Chennai – 600078 …Petitioner/Petitioner
V/s
the State Rep by
Inspector of Police,
Cyber crime cell
Central Crime Branch, Team – 13,
Vepery, Chennai – 7
Crime No-156 of 2020 …Respondent / Respondent
STAY PETITION
For the reason stated accompanying in the criminal original petition it is therefore prayed that this Hon’ble court may be pleased to Grant stay towards all further proceedings of the impugned order dated 12.05.2020 in Crl.M.P.No. 71 of 2020 passed by the learned Chief Metropolitan Magistrate, Egmore pending the Criminal original Petition and thus render justice.
Dated at Chennai on this the 13th day of May 2020
Counsel for petitioner
IN THE HIGH COURT OF JUDICATURE AT MADRAS
( Criminal Jurisdiction)
Crl.M.P.No. of 2020
in
Crl.O.P.No. of 2020
STAY Petition
M/s R.Krishna KumarMs 209/2015
Counsel for petitioner
9940411671
