PURE FACTS OF ASEEM TRIVEDI
CASE
By Anirban Roy, Advocate
The Aseem
Trivedi case has taken the entire country by storm. For various reasons, media
reporting of legal cases in India leave a lot to be desired and arouse more
doubts than the questions they answer. Be that as it may, here is a small
effort to place the facts of the Aseem Trivedi case in proper perspective:
1.
Aseem had displayed certain
cartoons at the Anna Hazare Fast at MMRDA Grounds, Bandra in December 2011.
2.
Someone found the cartoons of Aseem
offensive and hence filed a complaint against him at BKC Police Station,
Bandra. The Police however did not lodge any FIR.
3.
Aggrieved by the non-lodging of
FIR against Aseem by the Police, the Complainant approached the Bombay High
Court by way of a writ petition.
4.
During pendency of the above
writ petition, the Police ON THEIR OWN lodged an FIR against Aseem. There were
no Court orders.
5.
Case against Aseem therefore
became a pure Police Case. It is not a Private Complaint as understood in law.
6.
FIR against Aseem was lodged
somewhere around January 2012. The Case Number is CR No. 14 of 2012. He was
charged with Section 124A of Indian Penal Code, Section 2 of Prevention of
Insults to National Honour Act and certain sections of the Information Technology
Act.
7.
Section 2 of PINH Act makes spoken
or written words showing disrespect or bringing into contempt the Constitution
of India at a public place a punishable offence. Section 124A of IPC makes acts
bringing into hatred or contempt the Government of India a punishable offence
(criticism of Government actions are not covered).
8.
The Police have all the powers
under law to lodge FIRs in respect of the above offences. In fact it is their
duty. Section 124A of IPC is a cognizable offence and Police have the powers to
arrest without warrant.
9.
The Police case against Aseem
was in respect of several cartoons displayed by him. The first one which was
considered to be the most offensive was one where a Kasab faced dog was shown
urinating on the Constitution of India with a National Emblem. There is no
doubt that this was an offence under PINH Act.
10.
A word on charges. At the
inception, based on information of the offence, the Police apply certain
sections in the FIR. After investigation, the Police file Charge-Sheet where
they apply the final sections. Actual framing of charges is done by the Court
after hearing the accused. The charges framed by the Court can be challenged in
higher courts upto the Supreme Court. Finally trial begins and it is the burden
of the prosecution to prove the charges beyond reasonable doubt upon which a
person is convicted.
11.
It appears that in the Aseem
case, the Police took precautions. Opinion was sought from the Chief
Metropolitan Magistrate before proceeding further (subject to reconfirmation).
12.
Although in cases of cognizable
offences, the Police can arrest on their own without a warrant, the Police took
further precautions and got a warrant issued by the Court.
13.
Armed with a warrant, the
police went to UP to search for Aseem. They met his parents but could not trace
him. They left a message with his parents about the case filed before BKC
Police Station and returned.
14.
Aseem surrendered at the BKC
Police Station on Saturday September 08, 2012. This was surprising as every
accused avoids arrests on a Saturday, the next day being a holiday. There being
a pending warrant, the Police had no other option but to take him into custody.
15.
As per law, an arrested person
has to be produced before a Magistrate within 24 hours of arrest. Sunday being
a holiday, Aseem was produced before a Holiday Magistrate.
16.
Production before a Holiday
Magistrate is a mere formality. The Holiday Magistrate merely ensures that the
arrested person has not been ill-treated by the Police and is medically fine
and normally passes over the matter to the Regular Magistrate with a short
date. The arrested person is normally left in Police Custody.
17.
Strangely, Aseem did not apply
for bail before the Holiday Magistrate. The Holiday Magistrate went by the
Remand Application and continued Police Custody. It is a bit surprising as
there was nothing to be investigated in the matter and hence Aseem should have
been transferred to Judicial Custody. However the contents of the Remand
Application are not known and one doesn’t know the case made out by the Police
for Police Custody.
18.
In any offence, the Police is
required to investigate and for this they may require arrest and custody of the
accused. However this is subject to the approval of the Courts and for this
purpose, the Police makes Remand Applications. If the Police is able to
convince the Court, the arrested person is given Police Custody.
19.
After immediate investigation
by Police is over, the Court transfers the custody of the arrested person from
Police to Jail. POLICE AND JAIL ARE NOT SAME. I repeat Police and Jail are not
same. The services are different. Jail custody is also known as Judicial
Custody.
20.
When an arrested person is
transferred to Judicial Custody, Police lose control over and access to him. If
they require to speak to him, they need to go to Jail and follow procedures.
21.
Once a person is transferred to
Judicial Custody, it is deemed that custodial investigation is over and he
becomes entitled for bail as a right. It is routinely granted unless it is a
heinous crime, there are likelihood of the accused absconding or tampering
evidences or intimidating witnesses etc.
22.
In case of Aseem, on the very
next date of his production before the Holiday Magistrate, i.e. on Monday
September 10, 2012, the Police made an application before the Regular Magistrate
that they no longer require Police Custody (a bit strange). The Magistrate
therefore transferred him to Judicial Custody. As explained above, it was just
a process.
23.
Upon transfer to Judicial Custody, Aseem
became entitled to bail. However Aseem CHOSE NOT TO APPLY FOR BAIL. Since there
was no application for bail, he couldn’t be granted one. The Magistrate had no
other option but to continue his Judicial Custody and send him to Arthur Road
Jail.
24.
Aseem would have continued in
Judicial custody till the conclusion of the case. A criminal case doesn’t end
with investigations but merely begins.
25.
On Tuesday, September 11, 2012,
a kind hearted soul named Sanskar Marathe filed a PIL in the matter before the
Bombay High Court. The contents of the PIL are not known. PIL of Sanskar
Marathe is numbered as CR PIL Stamp No. 21 of 2012.
26.
On the same day i.e. Tuesday,
September 11, 2012, the Hon’ble Chief Justice of Bombay High Court Shri Mohit
Shah, by an order in the said PIL, directed that Aseem be released on bail.
Thus Aseem who was not seeking bail on his own was granted bail upon
application by another.
27.
Granting bail in a PIL is a
very unusual order. Very unusual. However it doesn’t seem per se illegal as
High Courts have tremendous powers under Article 226 and 227 of the Constitution
read with Section 482 of the Code of Criminal Procedure. The powers of the High
Court are actually wider than those of the Supreme Court.
28.
Chief Justice Shri Mohit Shah
is one of the most practical and compassionate judges one can come across. An
unusual order from him is not very surprising.
29.
Pursuant to the above bail
order, Aseem was released from Arthur Road Jail on Wednesday, September 12,
2012. The case against him is not over and he has not been acquitted. The case
will continue.
30.
In my opinion there has been
nothing illegal in the acts of the Bombay Police, the Government or the
Judiciary in the case so far. Unless of course Aseem Trivedi seeks special
status as a “Cartoon”.
Anirban Roy
September
13, 2012
Email:
anirban@royslawfirm.com
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