Thread by @barandbench

[SIDHIQUE KAPPAN CASE]

Chief Justice of India NV Ramana led bench of #SupremeCourt to shortly hear the Habeas Corpus plea seeking the release of journalist Sidhique Kappan from Mathura Jail & transfer to AIIMS for medical treatment

#SidhiqueKappan

Uttar Pradesh government had objected to the Habeas Corpus plea seeking release of journalist Siddique Kappan stating that the plea is not maintainable since Kappan's detention is as per the procedure prescribed under law @Uppolice @myogiadityanath

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Matter to commence shortly

#SupremeCourt #SidhiqueKappan @Uppolice

Solicitor General Tushar Mehta: We have filed our reply. The RT PCR test of Sidhique Kappan is negative. His antigen test was positive

#SupremeCourt #SidhiqueKappan @Uppolice

SG: i have a preliminary objection about the miantainability

CJI: Mr Mathew. are you appearing for Working journalist association?

Wills Mathew: Yes the association and Kappan's wife

#SupremeCourt #SidhiqueKappan @Uppolice

CJI: what relief are you seeking?

Mathew: release of Mr Kappan from illegal detention

CJI: bail?

Mathew: yes

CJI: ok argue

#SupremeCourt #SidhiqueKappan @Uppolice

Adv Wills Mathew: Please take a look at the Application for Directions filed on 29 October, 2020

#SupremeCourt #SidhiqueKappan @Uppolice

Mathew: Arrest form says in District Mathura FIR was registered under.... (reads contents of FIR) Mr Kappan is a journalist and he was going to Hathras to discharge his official duty to cover the hathras incident.

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@Uppolice

Mathew: A journalist cannot work within a time frame , whenever there is a news he will rush. He is not a high profile journalist. The arrest was illegal.

#SupremeCourt #SidhiqueKappan
@Uppolice

Mathew: Invoking Section 167 before sub-divisional magistrate was wrong as he does not have the power to look into it. That is the first illegality.

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@Uppolice

Mathew: Foundation of the FIR is newspaper reports. There is nothing concrete in the FIR. Contents of the FIR will not itself make an offense. (reads FIR....)

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@Uppolice

Mathew: FIR says newspaper reports suggested some media persons were creating communal disharmony by anti-social elements. This was done to intention to create fear in the mind of people

#SupremeCourt #SidhiqueKappan
@Uppolice

Mathew: I was informed the charge sheet was over 5,000 pages but we only got 35 pages.

SG: Is he arguing the quashing case?

Mathew: I am on the merits.

#SupremeCourt #SidhiqueKappan
@Uppolice

CJI: we are only on the bail application and argue which SG can reply.

SG: Accused is represented in competent court by his lawyers. They have received chargesheet. No one is going to serve an association

Mathew: no one has recieved

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@Uppolice

Mathew: On maintainability, i am a surgical blade at the hand of a surgeon. I have to be with everyone depending on stories. In this case as a journalist is my life beyond the source of income. Is there any credible evidence against me or should I be given benefit of innocence

Mathew: in this case i am a low profile journalist who earns around 25k per month and sometimes salary is in time and sometime it is not. I should be given benefit if there is no credible evidence against me.

#SupremeCourt #SidhiqueKappan
@Uppolice

Mathew: I am basing my argument on justice-oriented approach as justice is above all. Let me start with the preamble..

CJI: please stick to legal points

Mathew: Article 19 is very important here.

#SupremeCourt #SidhiqueKappan
@Uppolice

Mathew: Now Article 21, the importance of the article is seen in Article 359 as even during emergency Article 20 and 21 has to be safeguarded. now in Article 32 on maintainability. Its a constitutional remedy.

#SupremeCourt #SidhiqueKappan
@Uppolice

Mathew: If we are looking at entire issue then what will Article 32 be without habeas corpus as its the most celebrated right. If there is justice in my submission then even a piece of paper is sufficient to entertain my habeas corpus plea
#SupremeCourt #SidhiqueKappan
@Uppolice

CJI: moving away from Constitution, tell us about facts?

Justice Surya Kant: you must press on the grounds why you want bail?

Mathew: procedure established by law was not followed. Sub divisional Magistrate invoking 167 crpc was incorrect as he did not have the power

CJI: you are asking interim bail. tell us the reasons?

Mathew: there is delay in filing chargesheet

CJI: it appears counsel before trial court already got it. forget this submission. Its already served

Mathew: i am on health grounds and suffered a fall in washroom then he tested covid positive. He was admitted to a hospital and he was chained there and treated like an animal. He is diabetic and with serious other medical issues. This affects his life.

Mathew: What is of paramount importance is the life of the victim. If its a case of past crime or recovery of substances from him. but that is not the case. He is a journalist and he has right to access all kinds of people

#SupremeCourt #SidhiqueKappan
@Uppolice

Mathew: profession of journalism requires a special protection. Without independent impartial media then there is no democracy. This will be the end of democracy.

#SupremeCourt #SidhiqueKappan
@Uppolice

CJI: Can we ask some questions on facts ? You are a journalist working for a paper in Kerala ?

Mathews: Yes it has an office in Delhi.

CJI: Is it a web based magazine ?

Mathews: It’s an online publication my lords

CJI: How often does it get updated, the magazine ? You are a journalist working for this in Delhi ? You are staying in Delhi ? Where is your family? in Kerala ?

Mathews: I am in Delhi, but my family is in Kerala.

CJI: What do you want after bail ? You want to shift to AIIMS ? Do you need Medical treatment also?

Mathews: First priority is medical treatment, followed by bail for which we have made an application

CJI: Have you seen affidavit filed and the medical report.

SG: I have something to say. We can screen share the document for ready reference

CJI reads the affidavit: state filed a reply and now you have filed an affidavit. First we will finish this and then come to legal question

SG: accused is now covid negative and released from the hospital on April 27 and was taken to Jail. State has said medical aid will be given as required. allegations made about hospital conditions are nothing but wild allegations. Nothing is submitted before trial court

CJI: Mr Mathews are your submissions over?

Mathew: Medical report page number 2 has MLC injury portion. please read the opinion. injury is caused due to hit by a blunt object which is 6 to 8 hours old. This delay in taking a diabetic patient for medical aid is unfair

Mathew: In the UP reply it is stated that he was released just yesterday. From source we have come to know that he is still critical. He is still under medical supervision. just for bringing it on record he was forcefully discharged from hospital.

Mathew: Doctor of Supreme Court can summon the medical report or inspect the same. I had myself filed an affidavit. When I visited the jail myself hundreds of people were there without masks.

CJI: Mathews we understand that as per you he needs medical supervision and that he is weak.

Mathew: that is my priority, he was in jail for more than 6 months.

SG: Let me address you on facts and you will find it shocking that some one is pressing for habeas corpus

SG: This purported association is saying their journalist is arrested. Kappan was found to be carrying a ID card of a newspaper Tejas which closed down three years ago. UP affidavit needs to be seen. I will not be as irrelevant to read the preamble etc.....

SG: Home department has filed an affidavit because of the seriousness of the issue. He was carrying a fake identity card. He entered during the Hathras incident to create a caste divide. Tejas is an acclaimed mouthpiece of PFI. It has links with SIMI.

SG: Tejas is so extreme in his views that he has created religious dischord in Kerala and Osama Bin Laden was called a martyr when Kappan was an active contributor.

SG: Accused is closely associated and close links with PFI members on social media platforms, by phone and has links all across the country.

SG: four persons were arrested, Accused and his three accomplices were arrested.

SG: Kappan was creating caste and communal divide. PFI is known to have been in touch with members ISIS and faces case in Kerala and other states. Kappan is in touch with many of these people.

CJI: Is he an accused in this case?

SG: No

Justice Surya Kant: Is there a ban on PFI?

SG: some states have banned

Justice Kant: that means its not banned all over

SG: yes

Justice Kant: his monthly salary is 25,000. Then how is the cash transactions relevant. we want to know there are 2 type of projections. petitioner says he is a small time reporter for a web magazine. this is the level of a small journalist as in every where.

Justice Kant: But the other projection is that he is in direct links with PFI and is a direct beneficiary of cash transactions

SG: all foot soldiers may not get the money directly from the organisation. You are not looking at a bail application. This is a writ of habeas corpus

SG: writ of habeas corpus lies when there is illegal detention. This court has held that when magistrate remands him to custody then it becomes official custody and no habeas corpus can lie. all of them have been represented by lawyers in trial courts. Others have filed bail

SG: since UAPA offence is there, the sessions court rejected the bail by reasoned order. Kappan wants a habeas corpus to be entertained by an association. let him approach sessions court and seek bail under 439 crpc. He can seek regular bail

Justice Kant: is there a jurisdictional embargo that a court when considering habeas corpus sees that may be writ is not maintainable but can the court not entertain a bail case there in?

SG: Now will you consider bail?

CJI: answer the legal question we are asking

SG Mehta: then if this is the way, I have to compile the list of judgments on this point

Judges take a minute to discuss with each other

SG Mehta: My lords, I have a suggestion. My answer would be habeas corpus is not maintainable and lesser relief is not needed. somebody else is before your lordship and accused is not saying he is disabled so he cannot seek regular bail. We will give medical support.

Justice AS Bopanna: we need to see if habeas corpus can be entertained. if it cannot be entertained then can bail be granted. de hors all this chargesheet has been filed and HC may be approached under 482 crpc. His wife has intervened too. His wife is there , so we can consider

Justice Bopanna: if medical treatment grievance is there then would it not be appropriate notwithstanding maintainability etc but cannot court grant better medical treatment in Delhi. not bail but at least better medical treatment

SG: there are thousands of law abiding citizen getting treated in Mathura hospital but if your lordship thinks he cannot be treated there then the court may consider so

CJI: why should we not intervene now when it is submitted that his health is not proper. he wants better treatment and we are on that. Let him be treated in a hospital in Delhi and then let him go to Mathura jail.

SG: Let a medical board be constituted and let them decide

Justice Kant: you have to consider the suggestion given by CJI and brother Bopanna. Its not about covid. He has a problem of blood pressure, diabetes etc. You know very well that will he be able to get these facilities in jail hospital

SG: there will be others too in that hospital

CJI: this case has been pending for long.

Justice Kant: for the time being lets ignore the tag of the organisation. life of the accused is at stake

SG: I am taken aback. let me reply tomorrow

CJI: that's a different issue. Its in interest of state that when he is in judicial custody you have to protect him. Let him get medical facilities. We will take this case after one hour. You reply then. We will hear at 1 pm

SG: can it be tomorrow

Justice Bopanna: its a small issue

SG: I would be doing injustice to other prisoners

Justice Kant: your own medical opinion states he is suffering from multiple medical issues

SG: People with multiple organ failure is also being looked at by jail hospital

SC: grounds raised here will be diffused if he is treated in Delhi.

CJI: at 1 pm, we will hear again

SG: i completely leave it to your lordship

Matter passed over for 45 minutes

Matter to resume shortly

#supremecourtofindia #SidhiqueKappan

Bench assembles

SG Tushar Mehta: i have discussed with authorities. We as a state we are dealing with 42 year old covid negative patient. his report before you was of April 21. now we are ahead of this. In Mathura jail there are 50 covid patients with or without comorbidites

SG Mehta: In Mathura there are covid positive people who are not getting beds. Same situation here is in Delhi

#SupremeCourt #SiddiqueKappan

SG: lot of old people are also approaching me who are not getting beds. In UP also there is a lot of resurgence of COVID and they are not getting beds. May bona fide journalists are also struggling with life. This man has not approached competent court. He is adamant

SG: your lordships are examining a case which I can prove is not maintainable. if doctor says he needs hospitalisation then he can be in a Mathura Hospital. There are 7 trains from Kerala to Ernakulam. Its not like kerala is unconnected. Neutral independent board can examine

SG: He has some nlood pressure and diabetes patient. but even then if the board says a bed needs to be given at the cost of covid positive patient then let it be so. Let the board say so. people who have diabetes and are covid positive are not getting a bed

SG: if there is a medical emergency state of UP undertakes that Mathura hospital will examine him and whatever needs to be done without fear and favor. Bringing him to Delhi just so his family can meet him will be injustice

Mathew: my only submission is that him be granted interim bail in the case. He has not received a singe money from any source

CJI: that is not the issue. You have heard the other person its about bail

Mathew: its not about that, its about his health. its just not medicines

CJI: you said you want only medical treatment in the morning

Mathew: I am only suggesting that if he can be granted interim bail

CJI: Mute the mic (discusses with other two judges)

CJI: Mr Mehta, is it your case that he has done activities in Kerala also?

SG: yes that is my case. Till he applies for bail we are committed to take care of his health like we take care of the health of every accused

#SupremeCourt

SG: Transfer is not the case of Mr Kappan and not his prayer too

#SupremeCourt

CJI: taking into consideration facts, we see there is no reason to continue the writ. we dispose it off:
1. even though Mr Mehta opposed we direct UP to shift Kappan to RML Hospital, or AIIMS or any other govt hospital. After recovery he be sent to UP jail.

CJI: he may approach lower court for regular bail.

SG: you may have to direct the hospital to vacate a bed for a non-covid positive patient.

CJI: Mr Mehta you sort it out with the government. Leave it here. He be transferred back to jail after doctor certifies him to have recovered.

[BREAKING] Supreme Court orders Uttar Pradesh govt to shift Siddique Kappan to hospital in Delhi for medical treatment

[Read Full Courtroom Exchange]

report by @DebayonRoy

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