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

The Supreme Court on Wednesday ordered the Uttar Pradesh government to shift Kerala journalist Siddique Kappan to Delhi hospital for better medical treatment.

. Kappan who has been booked for sedition and charges under the Unlawful Activities (Prevention) Act (UAPA) is currently in a jail in Mathura.

. "We are of the view that owing to the apparent precarious health condition of the arrestee, it is necessary to provide adequate and effective medical assistance to him and to allay all apprehension relating to his health, it would be in the interest of justice to shift Sidhique Kappan – the arrestee, either to Ram Manohar Lohia Hospital or to All India Institute of Medical Sciences (AIIMS) or any other Government Hospital in Delhi for the proper medical treatment. The needful shall in this regard be done at the earliest," the Court ordered.

Kappan may then approach lower court for bail, the Court added.

. On the point put forth by the Solicitor General that there are other prisoners being treated at Mathura hospital, the bench stated that the most precious fundamental ‘right to life’unconditionally embraces even an undertrial.

"The consideration made herein is keeping in view the peculiar facts and circumstances of this case. Merely because the other jail inmates are receiving treatment similar to the arrestee need not deter us," the order said.

. The Court proceeded to dispose of the plea while clarifying that once the doctor certifies Kappan's good health, he can be transferred back to Mathura jail.

. The order was passed by a Bench of Chief Justice of India, NV Ramana and Justices Surya Kant and AS Bopanna .

. The Court was hearing an application filed by Kerala Union of Working Journalists (KUWJ) seeking transfer of Kappan from UP hospital to All India Institute of Medical Sciences in Delhi citing medical emergency.

. The plea by KUWJ said that Kappan had collapsed in bathroom at the Mathura jail and later tested positive for COVID-19.

"He is presently hospitalized in KM Medical College , Mathura. It is reliably believed that, more than 50 inmates of Mathura Jail are suffering from COVID, with various of scarcities, and even drinking water from toilet, seriously affecting hygiene, health, all leading to a major disaster in the making. In short, as on today , the life of Mr. Sidhique Kappan is in danger for all reasons," the plea said.

. Kappan's wife Raihanth Kappan also separately wrote to Chief Justice of India, NV Ramana stating that the scribe is "chained like an animal" to a hospital bed in Mathura and urging the Court to intervene and release him from the hospital and keep him back in Mathura jail till his plea for release from jail is decided.

"It is most respectfully prayed to take immediate steps/pass necessary orders to release Mr. Sidhique Kappan from the Medical college Hospital back to the Mathura Jail as interim relief," the letter written on behalf of Kappan's wife said.

. Kappan, a reporter for Malayalam news portal Azhimukham and secretary of the KUWJ’s Delhi unit, was arrested along with three others in Uttar Pradesh in October while on his way to Hathras to report on the gang-rape and murder of a 19-year-old Dalit girl.

They were later booked under provisions of the Unlawful Activities (Prevention) Act (UAPA) and also slapped with charges of sedition.

KUWJ a journalist organisation had then approached the Supreme Court by way of a Habeas Corpus petition. seeking Kappan's release.

. The latest application by KUWJ was filed in Habeas Corpus petition.

Advocate Wills Mathews appearing for KUWJ said that the procedure for arrest of Kappan itself was illegal.

"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," he submitted.

Mathews further contended that the foundation of the FIR was newspaper reports.

"There is nothing concrete in the FIR. Contents of the FIR will not itself make out an offense," he said.

The Court asked Mathews whether he was seeking bail or wanted medical assistance.

Mathews said that priority is medical attention.

"First priority is medical treatment, followed by bail for which we have made an application," he said.

Mathews added that UP in its reply 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," he said.

Solicitor General (SG) Tushar Mehta representing the Uttar Pradesh government contended that the accused is in judicial custody and the Habeas Corpus petition is, therefore, not maintainable.

Mehta further claimed that Kappan carried an identity card of Thejas newspaper, a Malayalam daily, which was shut down 3 years ago.

"Thejas is a mouthpiece of Popular Front of India. It had links with SIMI which is a banned organisation. Thejas is so extreme in his views that he has created religious discord in Kerala. It even Osama Bin Laden was called a martyr when Kappan was an active contributor," Mehta said.

Mehta alleged that Kappan was trying to create caste and communal unrest in the State.

" 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," he further contended.

"Is there a ban on PFI," Justice Surya Kant asked.

"Some states have banned it," said SG.

"That means its not banned all over," Kant responded,

"Yes, (though) Central government is considering," Mehta added.

Mehta also submitted that dubious transactions had come to light with respect to Kappan's bank account.

Justice Kant asked whether the transactions amouned to thousands or lakhs.

"There are two type of projections. The petitioner says he is a small time reporter for a web magazine earning Rs. 25,000. This is the level of a small journalist as in every where. But the other projection is that he is in direct links with PFI and is a direct beneficiary of cash transactions," Justice Kant said.

"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," Mehta responded.

"A writ of habeas corpus lies only 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," Mehta maintained.

The Court then asked whether a bail plea can be entertained in a Habeas Corpus plea.

"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 therein," asked Justice Kant.

The Court eventually said that even if Habeas Corpus cannot be considered, it will consider the plea for better medical treatment.

"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," the Bench said.

. CJI Ramana further said that the case has been pending for long.

For the time being lets ignore the tag of the organisation. life of the accused is at stake," Justice Kant said.

"I am taken aback. let me reply tomorrow," said SG.

The Court however said that it will decide the issue on Wednesday itself and asked SG to get instructions and passed over the matter for 45 minutes.

"We will take this case after one hour. You reply then. We will hear at 1 pm," said the CJI.

"It is a small issue," Justice Bopanna weighed in.

When the Bench assembled after 45 minutes, SG Mehta said that Kappan has been adamant to not approach the competent court for bail for the last many months.

He further said lot of old people, who are COVID positive, are not getting beds.

Kappan is not COVID positive, Mehta pointed out.

"I know a lot of people who are COVID positive not getting beds. In UP also there is a resurgence of COVID. I personally know someone who got a bed with much difficulty," Mehta said.

"If there is any medical emergency, then the State undertakes that Mathura hospital will examine him and whatever needs to be done without fear and favor," he added.

The Court, however, said that it has decided to order shifting of Kappan to Delhi for medical treatment.

It then proceeded to pass order to that effect.

SG Mehta said that the Court may pass a direction to one of the hospitals to vacate a bed.

"I wont be able to ask a COVID positive patient to vacate a bed for non-COVID patient," Mehta said.

"Mr Mehta you sort it out with the government. We leave it here," the Court said disposing of the petition.

. Earlier, the Uttar Pradesh Police had informed the Supreme Court that Kappan was not cooperating, with the investigation and had refused to divulge details of his social media accounts, passwords etc. in a bid to "conceal his misdeeds".

. (Read order)

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

Debayan Roy

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