[Sunday hearing] “Courts must have due regard for religion”: Madras High Court allows undertrial to attend father’s last rites

The Madras High Court held a special sitting on Sunday, February 11 to allow an undertrial in a narcotic case to attend the last rites of his deceased father, given that he was a “Hindu” and as the eldest son, was required to “discharge certain religious obligations.”.Justice GR Swaminathan of the Madurai bench of the High Court said that the case involved religious procedure which the Court must “necessarily give due regard” to. Therefore, the single-judge directed the Madurai Central Prison authorities and the local police to ensure that petitioner S Gurumoorthi is taken out of prison under escort on Sunday and brought back on Monday morning after performing the last rite rituals.The Court also directed the authorities to follow the same directions on the “16th day” of Gurumoorthi’s father’s death to enable him to perform the mandated rituals on that day..The Court held that since Gurumoorthi was found in possession of commercial quantity of Ganja at the time of his arrest, he was not entitled to bail or even interim bail as per Section 37 of the NDPS Act.However, given the special circumstances, the Court must exercise its inherent powers under Section 482 of the Criminal Procedure Code (CrPC), the judge said..“Though I decline the petitioner's request for grant of interim bail, I have to be mindful of the petitioner's fundamental rights. His father had passed away. This fact is not denied by the respondent. As a son, the petitioner will have to participate in the final rites of his father,” the Court said..Justice Swaminathan went on to say that even a dead person had a right to a dignified burial or cremation and that the Court must be mindful of the same..“Even a dead person must be deemed to possess certain rights. Of course this expression 'rights' will have to be understood contextually. A dead person is entitled to a dignified cremation/burial. This would of course mean that close relatives can participate in the ceremony. This issue can be approached from another perspective. The right to protect one's relative is a guaranteed fundamental right under Article 25 of the Constitution. The petitioner is a Hindu. As a son, he has to discharge certain religious obligations. He has to offer what is known as 'Pinda'. If one is the eldest son, it is he who alone can light the pyre. These are matters of religion and the Court has to have due regard for the same necessarily. While I cannot grant bail, I can certainly issue direction by invoking the inherent power under Section 482 of the Code of Criminal Procedure,” the Court said..Gurumoorthi was arrested and remanded to judicial custody in June last year after he was allegedly found to have 24 kilograms of Ganja. The prosecution opposed his bail application and submitted that the undertrial had two previous cases against him and that it was likely that he would commit another offence while out on bail..Advocate SS Sundarapandian appeared for Gurumoorthi.Government Counsel (Crl Side) P Kottaichamy appeared for the respondent State government..[Read Order]