Sei sulla pagina 1di 8

1

In the High Court of Judicature at Madras

Reserved on :

Pronounced on:

11.6.2015

19.6.2015

Coram :

The Honourable Mr.Justice V.RAMASUBRAMANIAN

and

The Honourable Mr.Justice K.RAVICHANDRABAABU

Writ Petition No.10560 of 2015 and M.P.No.1 of 2015

Mr.A.Santhos Yadav

Vs

1.The Bar Council of Tamil Nadu, rep.by its Secretary, having his office at NSC Bose Road, Chennai-104.

Petitioner

2.The Superintendent of Police, having his office at Villupuram, Villupuram District.

3.The Sub-Inspector of Police, E-1 Thirukoilur Post, Villupuram District.

Respondents

PETITION under Article 226 of the Constitution of India for the issuance of a

Writ of Mandamus to direct the first respondent to process the petitioner's

application for enrolment as an advocate in the Bar Council of Tamil Nadu

submitted on 28.11.2014 vide Application No.2550 of 2014 without reference to the

case registered in F.I.R.No. 307 of 2014 dated 4.10.2014 on the file of the third

respondent forthwith and enroll the petitioner as an advocate.

For Petitioner :

Mr.Raja Kalifullah, SC for Mr.Jayendra Krishnan Mr.S.Y.Masood

For Respondent-1 :

For Respondents 2 & 3 : Mr.I.Arockiasamy, GA

O R D E R

2

V.RAMASUBRAMANIAN,J

The petitioner, whose application for enrolment as an advocate has been

withheld by the Bar Council of Tamil Nadu, has come up with the above writ

petition seeking the issue of a Writ of Mandamus to direct the first respondent to

process his application.

2. Heard Mr.Raja Kalifullah, learned Senior Counsel appearing for the

petitioner, Mr.S.Y.Masood, learned counsel appearing for the first respondent - Bar

Council and Mr.I.Arockiasamy, learned Government Advocate for the respondents 2

and 3.

3.

The

petitioner

completed

his

decree

in

Law

from

Dr.Ambedkar

Government Law College, Chennai in June 2014 and submitted an application in

November 2014 to the Bar Council for enrolment. But, the application is not

processed for the reason that a first information report lodged in Cr.No.307 of 2014

on the file of the third respondent is pending against him for the alleged offence

under Section 285 of the Indian Penal Code. Therefore, the petitioner has come up

with the above writ petition.

4. The Bar Council, in the past, did not have the practice of verifying the

antecedents of persons, who apply for enrolment as advocates. But, by an order

passed in Crl.O.P.(MD).No.14573 of 2014, a learned Judge of this Court issued

directions to the Bar Council to verify the criminal antecedents of persons, who

apply for enrolment. This was due to the fact that there had been an infiltration into

this noble profession, of candidates with criminal antecedents, resulting in the

erosion of ethical values. In the main petition, the learned Judge appears to have

3

reserved orders on the question as to whether persons with criminal background

could be allowed to be enrolled as members of the profession or not. This is why,

when it came to light that the writ petitioner was implicated in a criminal case, his

application for enrolment was withheld by the first respondent.

5. We do not wish to go into the larger question as to how persons with

criminal background and how persons who studied in unrecognised institutions or in

institutions which do not impart any formal education and training in law, have

brought down the reputation of this profession, in view of the fact that the learned

Judge has reserved judgment on this very same question and judicial propriety

demands that we desist from entering into the same foray at this juncture. But, in

so far as the case of the petitioner is concerned, we are of the view that it requires

consideration, in the light of the peculiar facts and circumstances.

6. The petitioner appears to be the District Secretary of a political party.

Therefore, he appears to have participated in an agitation, in which, the effigy of a

political personality was allegedly burnt by him. Hence, a complaint under Section

285 of the Indian Penal Code was registered in Cr.No.307 of 2014 on the file of the

third respondent on 4.10.2014. After enquiry, the police also appear to have filed a

final report alleging as follows :

'That on 4.10.2014 at 10.AM, the petitioner burnt the effigy of Subramaniam Swamy near the bus stand at Thirukoilur, to protest against the conviction of the Chief Minister of Tamil Nadu and thereby caused hindrance to traffic and to the members of the public, thereby committing an offence under Section 285 of the Indian

Penal Code.'

4

7. Therefore, the short question that arises for consideration is as to whether

the participation of a person in an agitation to advance a political cause and the

burning of an effigy as part of the agitation, could be taken to be something that

will make the offender, a person with criminal background so as to dis-entitle him

from getting enrolled as an advocate or not.

8. Section 285 of the Indian Penal Code, with which the petitioner is charged,

reads as follows :

"Negligent conduct with respect to fire or combustible matter - Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be liked to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

9. A careful reading of Section 285 would show that the mere burning of an

effigy, by itself, was not made a punishable offence under the IPC. In fact, there is

not even a reference in Section 285, IPC to the burning of effigies. Section 285 is

actually inserted in Chapter XIV of the IPC, which deals with offences affecting

5

public health, safety, convenience, decency and morals. Section 285 itself is

grouped along with offences dealing with negligence. The manner in which Section

285 is worded would show that doing anything with fire or any combustible matter

any act so rashly or negligently as to endanger human life or to be likely to cause

hurt or injury to any other person, is made punishable. Therefore, acting rashly or

negligently so as to endanger human life or in a manner likely to cause hurt or

injury, is a sine qua non for making an act come within the meaning of Section 285.

10. Since there is no provision in the IPC, which makes the burning of effigies

a punishable offence, the police invariably charge persons, who burn effigies, only

for an offence under Section 285 or at the most under Section 286. In the case on

hand, the very final report filed by the police shows that the petitioner was charged

with an offence under Section 285 only for the act of burning the effigy of a political

leader.

11. It may be of interest to note that the burning of effigies has its roots in

history, culture as well as the religion of several countries throughout the world.

12. Megha Bhagat,

who

was a

disciple of Tulsidas - the author of Ram

Charitha Manas, seems to have organized Ram Leela Shows way back in the early

17th Century. Ever since then, Ram Leelas are performed in various parts of the

country. On the last day of the Show, the effigy of Ravana is burnt and the triumph

of good over evil is celebrated by this last act of burning of the effigy of Ravana.

13. At about the same time, in the early 17th Century, a similar practice

appears to have emerged in England. It is stated that the Catholic dissident Guy

Fawkes and 12 of his friends hatched a conspiracy to blow up King James I of

England during the opening

6

of Parliament on November

5,

1605.

But, the

assassination attempt was foiled the previous night, when Fawkes was discovered

in a cellar below the House of Lords. Londoners immediately began lighting of

bonfires in celebration that the plot had failed. Few months later, the Parliament

declared November 5 as a public day of thanksgiving. Ever since then, Guy Fawkes

Day also known as Bonfire Night, is celebrated in one form or the other. During the

celebrations, the effigies of Guy Fawkes along with that of politicians and celebrities

of the current day are also burnt as a mark of protest. This is why the burning of

effigy was not made an offence in England.

14.

As

a

consequence, the IPC did

not

make

the burning

of effigy

a

punishable offence, when the Englishmen drafted the Code in 1860. Guy Fawkes

Day festivities soon spread as far as the American colonies, where they became

known as Pope Day. In keeping with the anti-Catholic sentiment of the time, British

subjects on both sides of the Atlantic would burn an effigy of the pope. That

tradition completely died out in the United States by the 19th Century, whereas in

Britain, Guy Fawkes Day became a time to get together with friends and family, set

off fireworks, light bonfires, attend parades and burn effigies of Fawkes. Children

traditionally wheeled around their effigies demanding a “penny for the Guy” (a

similar custom to Halloween trick-or-treating) and imploring crowds to “remember,

remember the fifth of November.”

15. In an article titled 'burning issues' published in the on-line edition of "The

Hindu" on October

9,

2001, the former

Director General of Police Mr.V.R.

Lakshminarayanan indicated that Article 19 of The Constitution protected the act of

7

burning of effigies, if no other mischief was associated with it. He also quoted

Rajaji's advice to the critics of effigy burning and black flags, which goes as follows:

"Go and have a cold shower. All your excitement

will be washed away."

16. Therefore, in the context of the fact that the only crime alleged to have

been committed by the petitioner as per the final report filed by the police, is the

burning of the effigy of a political leader and also in the light of the fact that the

said act is sought to be brought within the purview of Section 285 of the IPC in the

absence of any specific provision relating to burning of effigies, we are of the

considered view that the petitioner cannot be stated to be a person with criminal

background. It is seen from the orders passed by N.Kirubakaran,J on various dates

in Crl.O.P.(MD).No.14573 of 2014 that what the learned Judge was concerned

about (with which, we respectfully agree) was only the entry of persons with

criminal background into the profession of law, so as to have a protective gear

around themselves from the Law Enforcing Machinery. Persons, charged with the

allegation of burning effigies of political leaders to advance either the cause of a

political party or the cause of a political philosophy, cannot be said to belong to the

category of persons, whose entry into the profession should be barred.

V.RAMASUBRAMANIAN,J

AND

K.RAVICHANDRABAABU,J

RS

17. Therefore, the writ petition is allowed and a direction is issued to the Bar

Council to process the application of the petitioner without reference to the

complaint in Cr.No.307 of 2014 on the file of the third respondent and take

8

appropriate action in accordance with law, if he satisfies all other requirements of

law. No costs. Consequently, the above MP is closed.

Index : Yes Internet : Yes

(V.R.S.J.)

(K.R.C.B.J.)

19-6-2015

To 1.The Secretary, Bar Council of Tamil Nadu, NSC Bose Road, Chennai-104. 2.The Superintendent of Police, Villupuram, Villupuram District. 3.The Sub-Inspector of Police, E-1 Thirukoilur Post, Villupuram District.

ORDER IN WP.No.10560 of 2015 and M.P.No.1 of 2015