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The Rediff Special/ Shrikant Bhat

'On the face of it, there is no need to arrest'

Advocate Shrikant Bhat provides a ready reckoner to the legal issues involved in the Bal Thackeray case.

Part I: 'In no case, is arrest compulsory'

Section 2(b) of the Criminal Procedure Code defines the phrase investigation as 'all the proceedings under this Code for collection of evidence conducted by the Police Officer.' In other words, the primary function of the Investigating Officer (the police) is to collect evidence of an offence and to see whether the accused/suspect is connected with it or not.

The powers to arrest are thus directly related to the need to collect evidence.

To understand powers of arrest, one has to understand some key definitions and topics in criminal procedure. Offences are divided into two kinds. The first is non-cognisable for example: a taxi driver slaps a citizen over parking. This comes as simple hurt. Second example is defamation, one commits the offence of defamation, commits non-cognisable offence.

A non-cognisable offence is an offence in which the police officer has 'no authority' to arrest without a warrant from a Magistrate (Court) (Section 2(l) Cr PC. Classification of offences into non-cognisable and cognisable offences is given in Cr PC (Schedule One).

However, dacoity, robbery, cheating, etc, etc are cognisable offences.

Cognisable offence means an offence for which a police officer may arrest without a warrant from the Magistrate (Court) (Section 2© Cr PC.

Just because the allegations made by somebody constitute a cognisable offence, it does not automatically empower the police to arrest the accused/suspect.

In this context, Section 157 of Cr PC assumes critical significance. It says that after that after receiving information about a cognisable offence, the police officer shall 'proceed to the spot to investigate the facts and circumstances of the case and, if necessary, take measure for the discovery and arrest of the offender' (Section 157(1) Cr PC..

Thus, an arrest becomes necessary only if evidence of offence cannot be collected, except by interrogating the accused in police custody or if the offence is heinous.

In a historic judgment, in Joginder Kumar vs State of UP, the Supreme Court(1994) 4 SC 260) observed thus:

'The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p.31 observed thus:

'It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention, in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails were over such prisoners only who in the ultimate analysis need not have been arrested at all”.

As on today, arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure.' (para 12)

'An arrest during the investigation of a cognisable case may be considered justified in one or other of the following circumstances:

i. The case involves a grave offence like murder, dacoity, robbery, rape etc, and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.

ii. The accused is likely to abscond and evade the process of law.

iii. The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

iv. The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ….'

The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so.

Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.

It would be prudent for a police officer in the interest of protection of the Constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuiness and bonafides of a complaint and a reasonable belief both as to the persons complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.

The recommendations of the Police Commission merely reflect the Constitutional concomitants of the fundamental rights to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to persons to attend the Station house and not to leave the station without permission would do. (para 20 ibid)

In the case of Mr Bal Thackeray, the allegation seems to be that he was a party or wrote the editorial which promoted enmity between Hindus and Muslims (Section 153(A) on the Indian Penal Code. This was done in the editorial in Marathi published by Saamna, the Shiv Sena daily in 1992/1993.

At this moment, I shall assume for sake of argument, that editorials in Saamna did promote enmity between Hindus and Muslims. The present article is on the legal position regarding arrest and not on the merits of the editorials.

The maximum sentence for the offence under Section 153A is three years. In this case, the evidence against Mr Thackeray would be Saamna editorials. This is available with the prosecution agency. On the face of it therefore, there is no need to arrest. Arrest would be violative of the principles of Constitutional jurisprudence laid down by the Supreme Court in the Joginder Kumar vs State of UP case.

The police can file a charge sheet in the magistrate court and without arresting Mr Thackeray, the court can send summons to him to appear personally or through his advocate, in the court.

The media was also full with the reports that Mr Thackeray would be 'technically' arrested. Perhaps, by this is meant that he can be arrested by the police under Section 153A. But the police themselves can release Mr Thackeray on bail.

It will come as a revelation to all including the legal community that the police themselves have the powers to release the accused on bail, if the charge against that accused carries a sentence which is not more than seven years (Section 437 Cr PC). In fact under Section 437(2), Mr Thackeray can even be released on his own bond.

There is wide spread feeling that the moment the police register an offence which is in the category of a cognisable offence, arrest must follow. This feeling is totally wrong and has no foundation in the Criminal Procedure or the Constitution of India.

When we talk about law governing arrest, the primary law is the Constitution of India and the Supreme Court in the Joginder Kumar vs State of UP has already given the principles that if any executive authority consciously violates the principles laid down by the Supreme Court, it would be in contempt of the Supreme Court.

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