PURE FACTS OF ASEEM TRIVEDI CASE

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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