Supreme Court Bench headed by CJI NV Ramana will continue hearing today a matter pertaining to Kerala based Journalist #SiddiqueKappan, whose wife has sought immediate intervention to release Kappan from Mathura Medical College to Mathura Jail as his "life is in extreme danger".
Yesterday, the 3-Judge Bench sought medical records of Kappan, who is allegedly "chained like an animal" at a Hospital in Mathura where he is undergoing treatment for Covid-19.

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The Bench is also hearing a petition filed by the Kerala Union of Working Journalists (KUWJ) seeking Kappan's transfer to All India Institute of Medical Sciences (AIIMS) or Safdarjung Hospital, Delhi, in view of medical emergency.

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Matter will commence shortly.

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Matter has commenced.

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SG Tushar Mehta appears: We have filed our Reply. His rapid antigen was positive, but RTPCR was negative. We filed it yesterday.

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Adv. Wills Mathews appears for Petitioner.

SG: I have a preliminary objection regarding the maintainability.

CJI: We are aware of that, Mr. Mehta.

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Mathews: I am appearing for the wife and the journalist association.

CJI: What relief are you seeking ?

Mathews: I want Kappan’s release from illegal detention.

CJI: You want bail ?

Mathews: Yes.

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Mathews is now making submissions on facts of the case. He is reading out from the Application for Directions filed on 29 October 2020.

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Bench: Are you referring to IA dated 29 Oct, 2020 ?

Mathews: Please, my Lords.

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Mathews reads out the IA.

Mathews: Background of case is that Kappan is a journalist by profession. He was going to Hathras to discharge his duty. Media professional cannot work within a particular time frame or route. Whenever there is news, they rush to the place.
Mathews: The remand of the detenue was not according to procedure established by law. The arrest was illegal. It’s not according to DK Basu case.

CJI: Please narrate the facts first.

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Mathews narrates the facts of the case.

Mathews: My first submission is that invoking S167 is the major illegality from the starting point. Now, let’s come to the FIR.

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Mathews: The first FIR has the wrong time. Offences under 153A, 295A, UAPA provisions and IT Act were listed. There is nothing concrete in the FIR. May I read the main ingredients in the FIR ?

CJI: Yes.

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Mathews: The contents of the FIR will itself not make an offence.

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Mathews now reads out how it was alleged that some anti-social elements were creating situations to incite riots and violating peace, actions which are against social harmony and were funded by donations received by other countries.

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Mathews now reads that the newspaper reports also refer to how a website inspires people to riot, refers to “India’s Daughter” and how such instances are used to invoke anti-national feelings in the youth.

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Mathews reads out contents of the FIR which refers to the reports mentioning how the actions of the people behind the website fall under the offence of sedition and UAPA. Further, offences under IT Act have also been made out.

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Mathews: This is the FIR. I may be permitted to say that I am a journalist and there is nothing specially attributed to me. I was informed that there were thousands of pages and I only got 35 pages.

SG: He is arguing fitness, and not quashing.

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SG: You please go through the law on habeas.

Mathews: Let me make my submission.

CJI: We are concerned about bail application.

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Mathews: We only got 35 pages.

SG: We are not supposed to serve the association of journalists. The accused and his lawyer have got it.

Mathews: Nobody has received it. We were informed there were 5,500 pages.

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Mathews: On the point of maintainability, my background is that I am a journalist and I have to move with all kinds of people. In this case, unless there is something substantial or disproportionate income or credible information against me, I should be given benefit of doubt.
Mathews: There are provisions for doctors, lawyers, CAs, but not journalists as a class. I am a low-profile journalist, struggling, getting 25,000 per month. Some days the salary is on time, some days it is not.

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Mathews: If there is no credible information, then I should be given benefit. The landmark judgement on this is Nagaraj v. State of Karnataka. Justice should always prevail. I will now read the Preamble.

SG: Preamble of the Indian Constitution ?

Mathews: Yes.
Mathews: If I have freedom of speech and expression, subject to reasonable restriction, then I should not be arrested like this. Now, look at Article 21 and Article 32.

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Mathews: Now I will come to maintainability, under Article 32 which talks about Constitutional Remedies.

Mathews reads out how first it is the writ of habeas corpus.

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Mathews: Habeas corpus followed by mandamus, prohibition, certiorari, quo warranto. If you look at the issues, there is habeas corpus - the most celebrated right. If there is credible, then even a piece of paper is enough to maintain the habeas corpus.

CJI: For a moment just ignore the provisions of the Constitution, what are the facts and why do you want bail ? You should press on this.

Mathews: He was arrested for provisions under CrPC of 151, 107, 116. The procedure established was not followed. Can I read 167 ?
Mathews: The sub-divisional Magistrate does not have the power.

CJI: Leave the Legal argument. You are asking for interim bail or bail. On what grounds ?

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Mathews: We were not given the chargesheet and there is the medical issue.

CJI: Leave the chargesheet, the lawyers on the ground have been given it.

SG: I will argue even on merits, but chargesheet given. Don’t know if he’s talking about Association or the accused.
Mathews: I will come to the health grounds. He tested positive for COVID, and he was also chained in the hospital. In prison, he was not given sustenance. He was so weak that he collapsed in the washroom.

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Mathews: There are no previous crimes. I am a journalist by profession, and being a journalist, I have the right to access all kinds of people. Profession of journalism which requires special protection. Of course there is no legislation on that.

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Mathew: If this is what is done to journalists just for doing their job, it is the end of democracy. Look at the FIR, no offence is made out. Even in the chargesheet, the money credited is just 25k, which is my monthly income. Even the SDM does not have power.
CJI: Can we ask some questions on facts ? You are a journalist working for a paper in Kerala ?

Mathews: Yes, with office in Delhi.

CJI: Is it a web magazine ?

Mathews: It’s an online publication.
CJI: How often does it get updated ? You are a journalist working for this in Delhi ? You are staying in Delhi ? Your family is in Kerala ?

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

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CJI: Still management keeps you in Delhi ?

Mathews: Serious financial problems.

CJI: What do you want after bail ? You want to shift to AIIMS ? Medical treatment.

Mathews: First priority is medical treatment, followed by bail.

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CJI: You have seen the affidavit filed and the medical report.

SG: I have something to say. We can screenshare.

CJI: We will come to you. You will get your chance.

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CJI reads out the medical report pertaining to the injuries suffered by Kappan.

SG: This is an aberration. Let me say something.

CJI: No, no. This is the report filed by State.

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SG: Let me say something.

CJI: Legal issues we will come to that later. Please read.

SG reads out the Affidavit filed.

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SG reads that accused has never made any complaints and he is being brought before the judicial court.

SG: I will stop for one moment. I am before the highest court of the country -

CJI: Mr. Mathews, is your argument over ?

Mathews: I will take three minutes.
Mathews reads out the medical issues.

Mathews: This is the case of the person who fainted in the bathroom. It took hours to get him medical attention. He is suffering from diabetes and other medical problems.

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Mathews: From our source, what we came to know that he is still critical. The report says that he is fit, but he is still under medical supervision. I fear that he will be discharged from hospital to the jail.

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Mathews: It is incorrect that there is no complaint of the accused against jail authorities. I myself have filed an application. I visited the jail myself and no one was wearing masks.

SG: I rarely interrupt, but I just want to say the truth.

CJI: Mr. Mehta, can’t cut short.
CJI to Mathews: So, you want to ensure he gets his medical supervision.

Mathews: Yes.

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SG begins his submissions.

SG: This is a purported association of journalists, not even a well known one. When this person was arrested, he was carrying a card of a newspaper called Tejas which hasn’t functioned for years.

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SG: I will now read focused points from the affidavit and not something like the Preamble. This was filed by Home Ministry. Not some jail officer, because the facts are more serious.

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SG: He was found to be carrying a fake ID of a newspaper which was closed in December 2018. He entered during the Hathras incident to create a caste divide. Tejas was a mouthpiece of PFI.

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SG submits how an individual of the PFI is also associated with SIMI which has been banned for 10+ years. Further, this paper had also called Osama Bin Laden a martyr.

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SG: Accused is frequently in connection with PFI members. Four persons were arrested in the same car - accused and three accomplices. Not only the accused, but the others were -

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SG: Accused is found associated with PFI which has been known to create public disorder by creating caste divide. It has been known to create anti-national activities and been known to be in contact with ISIS.

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SG: This is to show that he is in direct contact with such people.

CJI: In any of these instances, has he been a direct accused ?

SG: No.

Bench: Is there any ban on PFI ?

SG: Centre is in the process.

Bench: But not currently ?

SG: No.
Justice Kant: When you are referring to Kappan, you say that there are various cash deposits. Are they in thousands or lakhs ? This becomes relevant because Mathews has talked about his salary.

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Justice Kant: There are two submissions made that he is a small time reporter who gets a meagre salary. But the projection given in Para 22, that if he was involved in serious activities, then he would have monetary compensation from the organisation.
SG: All foot soldiers may not get the compensation from the organisation. The fact of the matter is that he is in touch with the organisation. SIMI is getting lakhs from foreign organisation. I am praying against the reach of habeas corpus here.
SG: The law has been laid down that once you are before the magistrate, habeas does not lie. He is not in unauthorised custody. Second, he is represented by lawyer in the trial court.

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SG: What the present accused wants in the name of an association on the ground that he is a so-called journalist, he wants a habeas to be entertained. Let him seek for regular bail before lower court. I will argue on merits.

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Justice Kant: Is there a jurisdictional embargo that a court when considering habeas corpus sees that maybe writ is not maintainable, but can the court not entertain a bail case therein ?

SG: Will you consider bail ?

CJI: Answer the legal question we are asking.
Court is now discussing amongst themselves.

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SG: I have a suggestion.

Court continues discussion.

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CJI: Yes, Mr. Mehta.

SG: If the habeas is not maintainable, a lesser relief is out of question. But, somebody else is before the Court. It’s not the case of the accused that he doesn’t have a lawyer. Medical ground, whatever the doctor says. Let him approach under 439.
Bench: There are different aspects to it. Whether habeas corpus is maintainable or not. If not, then whether bail application is maintainable. Dehors all this, he may avail his remedy, all that may be done. His wife has filed an IA. Based on that we can also consider.
Bench: If treatment is concerned, if medical problems are there and he has comorbidities, notwithstanding the fact that petition may not be maintainable, would he not be given better treatment in Delhi ?

SG: He is in Mathura.
SG: There are thousands of law abiding citizens who are not getting this.

CJI: Yesterday, you filed an Affidavit where he has fainted. Life of every person is valuable. I know it is difficult to get hospital facilities, we are aware of that.

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CJI: Please listen to me, Mr. Mehta. If his health is complicated, he’s also confined to the relief that he wants a better treatment. Let him be admitted to a better hospital in Delhi. And after that he can be taken back.

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SG: I object to this. I don’t want honest tax payers of Mathura to fund this and for thousands of honest tax payers in Delhi to give up this.

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SG: Let a medical board be constituted and decide this.

Bench: You yourself say that he was comorbidities, he has medical issues.

SG: Let him be treated in Mathura.
SG: If one organisation takes the remedy -

Bench: Mr. Mehta, for the time being we should overlook the tag of the organisation because the wife of the arrestee has also approached us.

SG: Can we take this tomorrow ? I am really taken aback by this.
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