Sunday, September 19, 2021

Strong Medical Report and Weak FIR freed Raju

An analysis of Supreme Court Bail Order

Rich industrialist, ruling YSRC Party MP, Kanumuri Raghu Ramarishnam Raju, with his controversial comments, followed by fierce legal battle caused emergence of a very useful bail jurisprudence within criminal justice system of India.  The Supreme Court’s detailed judgement on Raju’s Bail Petition will certainly help scores of innocent victims of atrocious police actions under the dictates of vengeful politicians anywhere in India. A common man cannot afford to go to Supreme Court and hire services of senior and efficient advocates like Mukul Rohatgi who has to successfully fight equally efficient lawyer hired by the Government of AP or UP or any other state, such as Dushyant Dave. Many journalists, writers, activists, and professors who were charged with Sedition failed to get bail repeatedly from the Supreme Court. It is very unfortunate. Everyone knows certain FIRs, like one in this Raju’s case, do not attract prima facie charges of sedition, still the bail is rejected at all levels.

Also read: Bail given after the fierce legal battle

Hence Raju’s fight up to Supreme Court will be of great value for poor and unaffordable sections like social media writers, small journalists, poets, small newspapers or content generators on YouTube, etc. who are increasingly being harassed by head strong governments exhibiting their intolerance to any criticism.

There are four takeaways of this Bail judgement of our apex court.

  • Big gain number One is: If the FIR does not reflect provocation that is serious enough to incite violence, the arrested person should be released forthwith on bail.
  • Second significant point is that if the arrested person is ill-treated by police in their custody, i.e., subjected to third degree, the custody should be ended.
  • The third important point is, the magistrate or the judge of constitutional courts cannot remand the bail application saying only trial court has jurisdiction to decide, because under section 439 both Trial and High Court have simultaneous jurisdiction.
  • The Fourth formidable point is the magistrate and judge must examine whether custody is essential for the nature of the case. For instance, in case of Raju, bases of the allegation is the talk, which borne by video recording, and there is nothing else to be collected as evidence,

These gains are not discussed in public platforms though there was a huge debate in Media including tv, print and social media platforms about achievement of bail order to MP Raghu Ramakrishnam Raju, from our apex court.

Also read: Mukul Rohatgi explains why MP Raju should not be examined in Andhra Pradesh

The ‘unstated’ in FIR

The contents of FIR are known. First point to be noted is that there is no complaint from any quarters. CID on its own inquired and found the need for registering FIR, as if they are independently functioning. The Supreme Court investigated what is not there in the FIR. After enquiry by the State CID and on the directions of the Additional Director General of the CID to institute an FIR based on the said enquiry report, an FIR was lodged on 14.05.2021 with the allegations such as: 

“Sri Raju did not restrict himself to fair criticism of the Government, but has made every attempt to create hatred, contempt disaffection towards the Government. Not only has he done this through his words, but also used visual gestures of face and hands to provoke his followers to take up violence. They are seditious in nature.

Sri Raju has particularly targeted ‘Reddy’ Community and ‘Christian’ community and has tried to stoke hatred against them by trying to portray that Government has been favouring the two. That he has been successful in doing this is very apparent from the comments to the videos, thus causing public disharmony.

Two media channels TV5 and ABN by allotting premeditated and organised slots have clearly shown that there was a meeting of minds of Sri Raju with the heads of these media channels and all of them together conspired against the government.

All the speeches looked like a well-orchestrated conspiracy to create disaffection and bring contempt and hatred against the Government by Sri Raju and a few media groups and also to cause disharmony in public. By creating a feeling of hatred on the grounds of caste and religion.”

Though the CID Police accused two TV channels, no names were mentioned FIR and no arrests were made.

Also read: How can criticism be seditious?

FIR does not disclose ‘seditious’ nature.

Defending Raju’s claim, senior advocate Mukul Rohatgi said that the statements issued by the appellant were mere criticism of the actions of the State Government and in no case such a criticism, which according to the learned senior counsel would be classified as fair criticism, could be treated as sedition to be punishable under Section 124-A of IPC. He said that such a section has been included in the FIR only to ensure that the offence becomes non-bailable, as the other sections under which the appellant is charged are offences punishable below seven years.

He also pointed out that in FIR there is no averment that Raju called upon people to violence or to take up arms or there is any attempt to overthrow the Government through violence, and thus the charge of sedition is completely untenable.  To know what constitutes the sedition, we need to look to judgment in the case of Kedar Nath Singh vs. State of Bihar – AIR 1962 SC 955, which has been followed in the case of Balwant Singh vs. State of Punjab – (1995) 3 SCC 214.

SC pointed out that there is no averment in the FIR or anywhere that Raju’s words led to violence. FIR says, “it was an attempt to create hatred, provoked his followers to take up violence”, which is not enough to say that he incited violence.  The language that slipped into the FIR has reflected unintendingly the truth of not having incited violence. This can be read by unbiased and fearless mind, which are scarce commodities nowadays. 

Also read: DGPs, CMs – Don’t clampdown on Covid Comments in Social Media

From Magistrate to SC

Let us see the origin and travelling of this case up to the Supreme Court within one week. The ruling party was very much embarrassed and developed vengeance against their own MP levelling serious charges in very unreasonable language, more scathing than the opposition party.  When Raju filed a petition in High Court for cancellation of bail given to Jagan Mohan Reddy, the Chief Minister in more than a dozen  criminal cases, it reached intolerable level for the rulers. Finally, Raju made long speeches in two or three TV channels continuously, accusing in undefendable language about caste and religious community of the Chief Minister, which angered them most. A Telugu Film Actress was also roped into this debate on social media, which reached lakhs of people.Raju was arrested. He sought bail. The Magistrate court has dismissed the petition of MP Raju for the bail. Rohatgi in SC pointed out that Raju has been tortured and injured in police custody. This was mentioned by the Magistrate while considering the application for remand. The Magistrate, directed on 15.05.2021, for a medical report from the Government doctors as well as directed that the appellant be also examined by a private hospital. This is because of the deep animosities between Raju and ruling party both sides apprehended false and biased report.

The High Court rejected the bail application. Further on that day itself, pursuant to a letter addressed by the senior counsel for the appellant, the High Court passed another order after treating the said letter as a Habeas Corpus petition [W.P.(SR) No.14718/2021 directing examination of the appellant by a Medical Board headed by the Superintendent of Government General Hospital, Guntur, which submitted its report on 16.05.2021.

Raju approached the Supreme Court under Special Leave Petition over the dismissal order of the High Court, which is not imaginable for a common man to approach all the three levels of courts within 36 hours of arrest. For this one should be a crore-pathi with great resources to tap the services of topmost lawyers.

Also read: The EC’s U turn and love for Media Freedom

Interim order of SC: First major defeat of AP

SC’s first interim order to bring Raju from the custody in AP to Telangana, constitution of medical board totally not involving anybody from  AP, putting under control of judicial nominee appointed by Telanagana HC and then asking Y category security to escort him upto Army Hospital, each exposed the credibility and genuineness of AP departments which are working at the beck and call of the political powers, without using discretion given to them by law. Most significant parts of the order of SC are:

(1) Mr. Kanumuri Raghu Ramakrishnam Raju shall forthwith be taken to the Army Hospital Secunderabad for medical examination. The Y category security, provided under orders of the Delhi High Court, shall escort him only till the Army Hospital and need not be present at the time of medical examination.

(2) The medical examination shall be conducted by the medical board of three doctors of the hospital to be constituted by the head of the Army Hospital, Secunderabad, Telangana.

(3) Raju shall be medically examined in the presence of a Judicial Officer, who may be nominated by the Chief Justice of the Telangana High Court. 

(4) The proceedings of medical examination shall be videographed and be submitted to the Registrar General of the Telangana High Court in a sealed cover for being transmitted to this Court.

(5) Raju shall be admitted in the Army Hospital and kept there for medical care until further orders, which shall be treated as judicial custody of the petitioner. The expenses, if any, for hospitalization in the Army Hospital shall be borne by Raju.

Also read: Brave Father and a Humane Daughter

This strong contention, which stood against the actions of AP Government and took Raju out of AP police, out of AP Medical team, out of AP territory and finally out of AP custody.  The SC said entire medical examination shall be videographed and kept in custody of Registrar General of Telangana HC. SC did not believe in anybody in  AP.

Final stroke against credibility of AP is the Army Hospital’s medical report.  The truth in black and white amidst coloured remarks. The report of the Medical Board of the Army Hospital comprising of two full Colonels and one Lieutenant Colonel of the Army, has been placed before Supreme Court. In that report, the Medical Board says:

“A. Foot

Examination of FootRt. Lower LimbLt. Lower Limb
a) PedealedemaNon pitting edema present over the lower one third of the leg and the dorsum of the footNon pitting edema present over the lower one third of the leg and the dorsum of the foot
b) EcchymosisPresent over the dorsum of the forefoot including the toes and over the plantar aspect of the forefoot and over the medial longitudinal archPresent over the dorsum of the mid-foot, forefoot, the second toe and the plantar aspect of the lateral aspect of the foot and over the medial longitudinal arch.
c) TendernessPresent over the medial malleolus, the sole of the foot over the ecchyomotic regionPresent over the ecchyomotic patch of the heel and over the second toe
d) MovementsNormal ankle movements.Painful ankle movements.
 Painfully restricted subtalar and forefoot joint movements including interphalangeal joints.Painfully restricted subtalar and forefoot joint movements including interphalangeal joints.
B. Clinical examination of hip joint, thigh, knee joint and legs on both sides: Normal 4. X-ray Both Feet (Dorso-plantar and Oblique views) No.10260 dt.18 May 2021: Undisplaced fracture of the distal phalanx of the second toe (left foot)”

Rohatgi has submitted that from a bare perusal of the Report by Army Hospital, it is clear that Raju has been tortured by the police while the appellant was in custody, so much so that there is an undisplaced fracture of the second toe of the left foot. He has further submitted that the edema, ecchymosis as well as tenderness and other difficulty in movement of the ankle is also a result of the torture, which the appellant had undergone while in police custody. He further said that the detention of the appellant in the State of Andhra Pradesh would not be safe for the appellant and that he should be enlarged on bail.

CBI probe sought.

Rohatgi said that in view of the 8 injuries suffered by the appellant during custody and the way he has been tortured by the State Police, Supreme Court should take Suo Motu cognizance of the same and direct a CBI enquiry in the matter.

Contentions of  Dushyant Dave for AP Government

Senior Advocate Dushyant Dave mainly relied on techno-legal contention like “there is an alternative remedy available to the appellant of filing a bail application before the Trial Court, the High Court rightly relegated the appellant to approach the Trial Court”.

It is straight away in contradiction to Section 439 of Cr PC. Simple law. This is first point of Dave, that means state could not give any plausible reason to plead against bail petition of Raju. It is neither failure of Dave nor the State. But it reflects the total lack of basic points for the case. There is no case as alleged.

He said Supreme Court should not interfere with the order passed by the High Court, especially because the High Court has not considered the matter on merits. It is contended that since the appellant does not deny the statements made by him, as have been recorded in the reply affidavit filed by the respondents, the offences against the appellant are prima facie made out, which would need further investigation as well as custodial interrogation of the appellant, and thus he has contended that the appellant ought not to be granted bail by this Court. It is Dave’s second main point that the Police needed more time with Raju in custody. SC said all the contentions in the FIR are borne out by video recorded talks, and there is nothing beyond this to interrogate.

Dave has not questioned Army Medical Report

As regards the report of the Army Hospital, which is substantially different from the medical report of Government doctors filed in compliance of order of the High Court, Shri Dushyant Dave, has very fairly stated that he has no doubt about the correctness of the report of the Army Hospital, but has submitted that since in the report submitted by the Government hospital there is no fracture shown, which is there in the report of the Army Hospital, according to him, the injury/fracture could have been self-inflicted by the appellant. According to Shri Dushyant Dave, both the reports are honest reports. His point that the injury should have been self-inflicted by Raju was not believable.

Supreme Court’s order

The Supreme Court bench has held: The jurisdiction of the Trial Court as well as the High Court under Section 439 of the Code of Criminal Procedure is concurrent and merely because the High Court was approached by the appellant without approaching the Trial Court would not mean that the High Court could not have considered the bail application of the appellant….The High Court ought to have considered the bail application of the appellant on merits and decided the same.

Why SC took up?

Supreme Court further explained: “… since the High Court has not considered the matter on merits and much water has flown since the passing of the order of the High Court, as now there are two medical reports of the appellant, one by the government hospital on the direction of the High Court and the other by the Army Hospital on the directions of Supreme  Court, we deem it fit and proper to consider the bail application of the appellant on merits”.

SC opinion on custodial torture

SC said: “In our view, considering the injuries as reported by the Medical Board of the Army Hospital, we can prima facie form an opinion that the appellant may have been ill-treated while in police custody”.

On need for further custody

SC Bench of Vineet Saran and B R Gavai, JJ said finally, “further, we are of the opinion that the charges against the appellant are not such in which custodial interrogation would be required as all the statements made by the appellant are on record and the FIR has been lodged only after a detailed enquiry by the State CID. Considering the totality of the circumstances and also the health position of the appellant, specially that the appellant has undergone heart bypass surgery in December 2020, which is not denied by the respondent and has also been noted in the report of the Medical Board of the Army Hospital, we deem it just and proper that the appellant be enlarged on bail on the following conditions:

1. The appellant will cooperate in the investigation, he shall present himself for interrogation, if called upon, by the investigating officer and shall not influence any witnesses or try to interfere with the investigation.

2. The appellant shall be given at least 24 hours notice by the investigating officer, if he is to interrogate the appellant.

3. The interrogation shall be permitted in the presence of an advocate for the appellant, who may not be part of the interrogation but be present at some distance.

4. The appellant shall not address the press (print or visual media) on any of the subjects which relate to this case and the pending proceedings.

5. The appellant shall further furnish a personal bond of Rs.1,00,000/- (One Lakh Only) and provide two securities of the like amount to the satisfaction of the Trial Court within ten days from his discharge from the Army Hospital. It is further provided that the appellant shall be discharged from the Army Hospital, as and when the doctors so advice. The appeal stands allowed to the extent as indicated above”.

Conditions for Raju

Those loyal to the ruling party are claiming victory because bail was not unconditional. That must be decided on the content of conditions. First condition that Raju should cooperate with investigation, etc, and fifth to furnish securities are general and routine. The fourth condition is surely against Raju, that he shall not address the press (print or visual media) on any of the subjects which relate to this case and the pending proceedings. It is limited to this case and limited to pendency of the proceedings. Quite reasonable.

Conditions for police

Second and third conditions are conditions for the police not to Raju, about 24-hour notice and presence of Raju’s advocate at distance during interrogations. These points again prove in favour of Raju and totally against police.

The last sentence of the fifth conditionsays: “It is further provided that the appellant shall be discharged from the Army Hospital, as and when the doctors so advice”. This is a very clear order that leaves no scope for AP Police to interpret it in favour of the ruling party.

Raju’s lawyers have registered total success for Raju. Is it failure of Police or Legal team of AP? Where is life or strength in the case? The allegations do not have enough basis. Whether the police and the medical officers acted independently and with some amount of courage or truthfulness to the law and their duty?

Justice Madan Lokur commented that the reason for most of sedition accused being in jail without bail is ‘timidity’. Whose timidity? Timidity of those who are supposed to decide objectively what is sedition and whether complaint constitutes sedition. Major threat to justice is not bias, but the fear.  For bias we can question the authorities on ethical grounds. But if a decision is given with fear, there is no way the system can deal with it. Courage cannot be imposed by external factors, but it should be coming from internal honesty.

In these circumstances, where series of bails were rejected except in cases like high profile pro-BJP personality Arnab Goswamy, bail to Raghurama Krishnam Raju is a stupendous achievement of sorts. It is not only a major achievement for Raju, but a greatest defeat for Mantris, including the Chief Minister of Andhra Pradesh.  Main reason for the bail is the ill-treatment given to Raju during custody. It was improper to tell SC that it was self-inflicted injury of Raju. The apex court did not believe it. The medical report of Army Hospital raised heavy doubts about credibility of AP Police and AP medical professionals under the Government. 

The Home Minister and Medical & Health Minister of AP should resign for this kind of failure. Their teams have severely dented the credibility of the Government. The Government must initiate criminal actions against those who tortured Raju in custody. The responsible officers have lied to judicial courts up to the Supreme Court. Whether the medical doctors signed the report with factual examination results? This must be genuinely inquired into. For proper and conduct of inquiry they should be placed under suspension.

FIR (page: 1)
Army Hospital Report (page: 1)
Army Hospital Report (page: 2)
Army Hospital Report (page: 3)
Army Hospital Report (page: 4)
Army Hospital Report (page: 5)
Army Hospital Report (page: 6)

Supreme Court Bail Order to Raghu Ramakrishnam Raju

Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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