The Judicial First Class Magistrate, while denying him bail on January 9, rejected all three contentions raised by Youth Congress president Rahul Mamkoottathil.
One, Rahul said the prosecution had wrongly branded the Youth Congress Secretariat march on December 20 as unlawful and, therefore, failed to establish a 'common object'.
'Common object' refers to the principle of vicarious liability which means a person who had participated in an unlawful assembly will be held accountable for the actions of others. In other words, the entire throng, if unlawful, is deemed to have acted as one.
Rahul told the court that the Youth Congress was merely staging a protest against Chief Minister Pinarayi Vijayan for unleashing a series of brutal attacks against its workers during the Nava Kerala Yatra. He said this was a fundamental right granted by the Constitution.
The First Class Judicial Magistrate (FCJM) Abhinimol Rajendran said the Youth Congress march on December 20 was indeed "unlawful". "That the accused were armed with wooden planks and flag sticks itself reveals that the nature of the assembly was unlawful," the FCJM said in her January 9 order.
As a consequence, the principle of common object/vicarious liability kicked in. And since the offence has been charged under Section 149 of the Indian Penal Code (IPC), the order said that the mere presence at the site was sufficient to make Rahul liable for any offences committed by other Youth Congress members.
Section 149 states that every member of unlawful assembly is guilty of offences committed as part of the common object.
Two, Rahul said 41A notice was not "properly served to him". Under Section 41A of the Criminal Procedure Code, the police have to issue a notice to a person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before a concerned officer.
Rahul said he was in Thiruvananthapuram in the previous days and produced photographs of him at various functions in the capital city. Therefore, he argued that the police apprehension that he would flee from justice would not hold. What's more, he said the investigation was nearly over. He said custodial interrogation was sought only to harass him.
The judge took the stand that the requirement of 41A notice need not even be discussed at this stage. "Since one of the offences alleged is under Section 333 IPC which is punishable with imprisonment for 10 years, 41A is not mandatory," the FCJM order said. Section 333 is about voluntarily causing grievous hurt to prevent a public servant from performing his duty.
Three, Rahul sought bail on medical grounds. He told the court that he was admitted for four days in the neurology department of a hospital for 'Recurrent TIA (transient ischemic attack)'. When there is TIA, a person for a brief period suffers symptoms of stroke. He also produced a discharge summary in support of his claim.
The FCJM was not persuaded by the proof on hand. "It is pertinent to note that there is nothing discernible from the discharge summary. The name and seal of the hospital was not discernible from the discharge summary," the order said. Moreover, even this discharge summary said that the patient was symptomatically better and his vitals were stable.
Since the discharge summary did not say much, the court called for a detailed medical report. "In the medical report produced it has been specifically stated that there is no evidence of any clinically identifiable illness and also no injuries were reported," the order said.
Thus, Rahul's bail petition was rejected.
