Updated: May 7, 2022 7:29:02 am
The arrest of BJP leader Tajinder Pal Singh Bagga by Punjab Police on Friday (May 6) precipitated a crisis after the Delhi Police registered a case of kidnapping against the Punjab Police team that apprehended Bagga.
The team, while transporting Bagga to Punjab, was then detained by Haryana Police en route and questioned on the basis of a warrant that Delhi Police got issued from a city court. By evening, Delhi Police had escorted Bagga back to the national capital.
Bagga arrest: What is the procedure for making inter-state arrests?
Police is a State subject, and thus the jurisdiction of a state police is limited to the state.
Broadly, the intent of the law has been that a criminal in a particular state must be arrested by the police of that state. However, in certain circumstances the law does allow the police of one state to arrest an accused in another state. This may be done by the execution of a warrant issued by a competent court, or even without a warrant — in which case the concerned state police must inform the local police about the arrest.
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State police forces across the country regularly make arrests in other states. In the normal course, this is done with the assistance of the local police. In many cases, however, the local police are merely informed before or after the arrest.
And what does the law say on inter-state arrests?
The powers of the police to arrest an accused in another state have not been defined clearly as far as arresting without a warrant is concerned. Section 48 of the Code of Criminal Procedure (CrPC) gives the police such powers, but the procedure is not defined.
Section 48 merely says, “A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.”
It has been debated whether the word “pursue” in this section means entering another state in a chase, or is applicable to an accused who is staying in another state and is not cooperating with investigators.
Section 79 of the CrPC deals with inter-state arrests on the basis of warrants issued by competent courts. This section lays down detailed procedures for such arrests. However, this is not applicable to the case of Bagga, as Punjab Police made the arrest without a warrant — which it has the powers to do.
In the present case, Punjab Police have maintained that Bagga had been served five summons to join the investigations with regard to a case where he has been accused of making death threats to Delhi Chief Minister Arvind Kejriwal, but he failed to appear for questioning.
Police, however, have an obligation to present an arrested person before a magistrate within 24 hours.
Article 22(2) of the Constitution of India says: “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
This is also laid down in Sections 56 and 57 of the CrPC.
How have the courts read the law on inter-state arrests?
In 2019, in ‘Sandeep Kumar vs The State (Govt. Of NCT Of Delhi)’ case, the Delhi High Court issued certain guidelines for inter-state arrests.
These state that a police officer must seek permission from his superior, in writing or on the phone, to visit another state to arrest a criminal. He must record reasons for a such a move in writing, and first make an endeavour to get an arrest warrant from a court except in “emergent cases”.
He must also make “a comprehensive departure entry in the Daily Diary of his Police Station” before proceeding to another state.
“Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit,” the guidelines said.
After reaching the other state, he should inform the concerned police station of the purpose of his visit to seek assistance and cooperation. “The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station,” the guidelines said.
While returning, the police officer must visit the local police station and “cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State”.
The guidelines also expect the police to make an effort to obtain transit remand after producing the arrested person before the nearest magistrate unless exigencies of the situation warrant otherwise, and if the person can be produced before the magistrate having jurisdiction of the case without infringing the mandate of Sections 56 and 57 of the CrPC within 24 hours.
On arrival at his police station, the police officer must make an arrival entry in the record and indicate the investigation carried out by him. He must also maintain a logbook of the vehicle used to ferry the accused from the other state.
The guidelines make an exception for “urgent cases”, in which the police of a state may not inform their counterparts in the other state of an impending arrest.
“…In case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of the search, seizure, arrest or investigation before the event, this should be done soon after… In all cases a diary entry should mandatorily be made in the police station of jurisdiction,” the guidelines said.
Are these guidelines followed by the police?
Police sources say that in most cases the guidelines are ineed followed, in spirit if not in letter. “Police from another state always at least inform the local police of their impending operation unless they feel that the operation itself may be compromised if local police are informed. Even then, the police are informed later. Generally, issues do not arise. Problems arise only in contentious and political cases,” a senior police officer said.
In many cases, accused are picked up in a state based on an informal understanding with the police of that state, and are then shown to have been arrested in the state to which the arresting police team belongs. “When there is a genuine criminal, or say, a terrorist involved, no state police insists on technicalities of jurisdiction,” another police officer said.
The Sandeep Kumar case, in which the guidelines were issued, is a classic example of the violation of jurisdiction and procedure based on an informal understanding between the police of UP and Delhi — even though the matter at hand did not warrant such action at all.
Kumar, a JNU employee, and his wife Nisha were apprehended by UP Police from the university campus in 2018. Kumar, a Hindu, had married Nisha, a Muslim, against the wishes of her family, which registered a case of kidnapping with the UP Police. The police arrested Sandeep and handed over Nisha to her parents.
After Kumar filed a heabeas corpus petition in the Delhi HC regarding his wife, the court instituted a committee under retired Justice S P Garg and former IPS officer Kanwaljit Deol, who had served in the Delhi Police.
The committee held that UP Police had failed to follow any procedure of inter-state arrest, informally taken the help of the Delhi Police, and had shown the arrest to have been made at the Loni border.
What other prominent inter-state arrests have taken place recently?
The case of environmental activist Disha Ravi has been often discussed in this context. Delhi Police arrested Ravi in Bengaluru in the case related to the circulation of a “toolkit” during the farmers’ protest in Delhi in 2021. Bengaluru Police were informed only after Ravi had been taken into custody. There were protests in Bengaluru against the Delhi Police action.
That same year, UP Police arrested a 60-year-old man in Chennai, Manmohan Mishra, for making allegedly objectionable remarks against Prime Minister Narendra Modi on social media.
Last month, Gujarat MLA Jignesh Mevani was arrested by the Assam Police in Gujarat in connection with a social media post made by him.
The Gujarat police have said they had no prior information of Mevani’s arrest. He was picked up from Palanpur Circuit House in Banaskantha district, then formally arrested at the police station. Banaskantha SP Akshayraj Makwana told The Indian Express: “The Assam Police had informed us on the same night that Mevani is being arrested under sections of the IT Act on an FIR lodged in Assam against him. As per procedure, he was brought to the concerned police station in Palanpur.”
Earlier in 2013, Delhi Police had arrested former Hizb-ul-Mujahideen militant Liaquat Shah from the India-Nepal border in UP with a cache of arms, and claimed that he was about to carry out a terrorist attack in Delhi. Subsequent investigations by the National Investigation Agency (NIA) found the claims were concocted. The NIA also raised the issue as to why Shah was not produced in a court in UP, where he was arrested.
What can be the fallout of controversies like the one resulting from the arrest of Bagga?
Police sources said on Friday that the turn of events in the Bagga case were unfortunate, and could have repercussions for future police operations. While the merits of the case against Bagga may be debatable, police officers say the Delhi Police action of registering a case of kidnapping against another state police for not following procedure could set a precedent that many states may begin to follow.
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“Barring the NIA, no agency or police has pan-India jurisdiction. What happens if a central agency such as the CBI or the Enforcement Directorate makes an arrest without a warrant in an urgent matter, and is booked for kidnapping by the state police? While the matter will eventually be settled in court, it will likely ensure that agencies and police hesitate to conduct operations in other states,” a senior police officer said.
With inputs from ENS, Ahmedabad
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