“Right To Participate In Funeral Ceremony Of Parent/Spouse/Child Part Of Article 25”: Madras HC Allows Undertrial To Attend Father's Funeral

“Prisoners including under-trials can invoke this right under Article 25 of the Constitution. Right to participate in the funeral ceremony of the parent/spouse/child will fall within the sweep of the right under Article 25. Of course, this cannot be an absolute right. The Court will uphold this right subject to the prevailing situation. Unless there are exceptional circumstances, this right will not be denied by the Court. In this case, there are no such special circumstances warranting denial of the right,” the court observed.

Justice GR Swaminathan observed that Article 25 could be invoked by any person and did not make any distinction between free persons and prisoners. The court also noted that the prisoner, being a Hindu had to discharge certain religious obligations. The judge also added that courts must have due regard in matters of religion. Thus, the court invoked its inherent powers to allow the man to attend the funeral and the 16^th Day ceremony.

“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 necessarily have due regard for the same. 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.

The petitioner S Gurumoorthi was arrested for the offences under Sections 20(b)(ii)(C), 29(1) and 8(c) of the NDPS Act and was later remanded to judicial custody. Though he relied on a similar order passed recently, the court was not in favour of the same.

The court agreed with the Government Advocate who submitted that in cases involving commercial quantities, the courts should bear in mind the parameters laid down under Section 37 of the NDPS Act. The courts had to be satisfied that there were reasonable grounds for believing that the accused was not guilty and not likely to commit any offence whil eon bail.

In the present case, the court noted that Gurumoorthy was found in possession of 24 Kg of Ganja. The court also noted that he had two previous cases and thus the court could not render a finding that he was not likely to commit any offence while on bail.

Thus, the court was not in favour of granting either bail or interim bail. The court, however, was also mindful of Gurumoorthy's fundamental rights. The court also noted that a dead person was also entitled to a dignified burial which would involve the participation of close relatives.

The court thus directed the Superintendent, of Central Prison, Madurai to make appropriate arrangements allowing Gurumoorthy to attend his father's funeral. The court directed Gurumoorthy to be taken out of prison on Sunday and brought back on Monday. The court also allowed him to participate in the 16th-day ceremony. Further, considering that Gurumoorthy may have console and be consoled, the court directed the escort team to maintain a reasonable distance and respect his privacy.

Citation: 2024 LiveLaw (Mad) 67

Case Title: S Gurumoorthi v State

Case No: CRL OP(MD). No.2228 of 2024