'Remand Can Never Be Made For The Asking': Madras HC Appreciates Magistrate For Refusing Remand In Case Over FB Post

In an interesting order quashing the impugned FIR registered against an office-bearer of the Communist Party of India (Marxist-Leninist) over a funny Facebook post, Madras High Court(Madurai Bench) has underscored that remand cannot be granted whenever it is sought by the prosecution or the police. A single-judge bench of Justice G.R Swaminathan appreciated Vadipatty Judicial Magistrate, M.C. Arun, for refusing to remand the 62-year-old accused in an FIR for "waging war" registered for captioning a vacation picture on Facebook as 'Trip to Sirumalai for shooting practice'. "I wish other magistrates in the State of Tamil Nadu act likewise. Remand can never be made for the asking. The police and the prosecution will seek remand in every case. It is for the magistrate to satisfy herself that the arrestee deserves to be remanded. Requests for remand must be decided on the touchstone of Section 41 of Cr.Pc and Article 21 of the Constitution. Thanks to the judicious conduct so well exhibited by Shri.M.C.Arun (the Judicial Magistrate, Vadipatty), the petitioner escaped incarceration by a whisker."The Vadipetty police had arrested the petitioner accused and produced him before the judicial magistrate, after registering a case against the accused for 'waging war against the state', among other charges. The petitioner was also charged for offences under Sections 120B, 122, 505(1)(b) and 507 of IPC. However, the Magistrate placed reliance on State v. Nakeeran Gopal (2019) and passed a detailed order while refusing the remand of the accused. The court observed that the remand was rightly refused by the Judicial Magistrate and the impugned FIR was 'absurd and an abuse of legal process'. Justice GR Swaminathan had observed in the order that, "Jug Suraiya, Bachi Karkaria, E.P.Unny and G.Sampath...if any satirist or cartoonist had authored this judgement, they would have proposed a momentous amendment to the Constitution of India to incorporate sub-clause (l) in Article 51-A…. To this, the hypothetical author would have added one more fundamental duty - duty to laugh." The Court went on to observe that the correlative right to be funny can be "mined in Article 19 (1) (a) of the Constitution of India" and quashed the criminal proceedings against the accused since none of the required ingredients of the offences have been fulfilled. While noting that 'being funny' and 'poking fun at another' is different, the court rhetorically stated that "Laugh at what?" is a serious question. The court also explained that the question becomes pertinent in the backdrop of regional diversity in India. "…This is because we have holy cows grazing all over from Varanasi to Vadipatty. One dare not poke fun at them. There is however no single catalogue of holy cows. It varies from person to person and from region to region. A real cow, even if terribly underfed and emaciated, shall be holy in Yogi's terrain. In West Bengal, Tagore is such an iconic figure that Khushwant Singh learnt the lesson at some cost. Coming to my own Tamil Desh, the all-time iconoclast "Periyar" Shri.E.V.Ramasamy is a super-holy cow. In today's Kerala, Marx and Lenin are beyond the bounds of criticism or satire. Chhatrapati Shivaji and Veer Savarkar enjoy a similar immunity in Maharashtra. But all over India, there is one ultimate holy cow and that is "national security", the court noted in the order.Also Read: 'Right To Be Funny Can Be Mined In Article 19(1)(a)': Madras High Court Quashes FIR Over Humorous Facebook Post Case Title: Mathivanan v. Inspector of Police & Ors. Case No: Crl OP(MD)No.18337 of 2021 and Crl MP(MD)No.10063 of 2021 Click Here To Read/ Download Order

'Remand Can Never Be Made For The Asking': Madras HC Appreciates Magistrate For Refusing Remand In Case Over FB Post

Sebin James

"Requests for remand must be decided on the touchstone of Section 41 of Cr.Pc and Article 21 of the Constitution"

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