February 7, 2021 8:00:35 am
The Supreme Court on Friday while granting interim bail to comedian Munawar Faruqui said that there are allegations that the procedure laid down under law was not followed in the case before carrying out the arrests.
What did the Supreme Court say in its order?
The Supreme Court granted interim bail to Faruqui who was arrested along with four others on January 1 in Madhya Pradesh on charges including outraging religious feelings under section 295 A of the Indian Penal Code. His petition before the Supreme Court following denial of bail in the sessions court and the Madhya Pradesh High Court said there was a “complete violation of the safeguards” laid down in the Supreme Court judgment in 2014 (Arnesh Kumar vs Government of Bihar) regarding arrests under section 41 (arrest without warrant) of the Criminal Procedure Code (CrPC).
The Supreme Court bench of Justices Rohinton Fali Nariman and B R Gavai said that Faruqui’s lawyer had pointed out that the allegations in the FIR are vague and the procedure laid down in the 2014 judgment has not been followed before arresting Faruqui. The court then stayed the High Court judgment and directed him to be released on interim bail.
What is the Arnesh Kumar vs Government of Bihar judgment about?
In 2014, the Supreme Court was hearing a petition in a dowry harassment case by a man seeking anticipatory bail apprehending arrest following a complaint by his wife. The court noted that there had been an increase in matrimonial disputes in recent years, including pendency before courts. It also dealt with a larger issue of arrest noting that it brings ‘humiliation, curtails freedom and casts scars forever’.
“…the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive,” the court had said. It further said that police officers must be able to justify the reasons for arresting a person and only because an offence is registered, it should not be followed by an arrest.
The court said that to ensure that police officers do not arrest accused unnecessarily and magistrates do not authorise the detention casually and mechanically, specific directions are to be followed. These directions included instructions to police officers not to automatically arrest when a case is registered under offences where the maximum punishment is seven years or less but to be satisfied first with the need to arrest under Section 41 CrPC.
What is Section 41 of CrPC?
The section gives the police the power to arrest a person without warrant under specific conditions. In 2001, the 177th report of the Law Commission noted that the number of arrests for bailable offences were increasing and suggested additions to section 41 to ensure that arrests do not happen in a routine manner on a mere allegation. Similar recommendations on arrests were also made by two previous law commissions as well as in a case, Joginder Kumar vs State of UP in 1994.
The recommendations of the 2001 Law Commission enacted by Parliament for offences which carry a maximum punishment of seven years or less, require a police officer to give a notice to a person booked or suspected of having committed the offence. The person would be directed to appear before the officer and having complied with the notice to appear, she shall not be arrested. If the officer is of the opinion that arrest is required, reasons for it are required to be recorded in writing. In case of an arrest, the magistrate too is required to authorise the detention only if the conditions in the section are complied with.
The Supreme Court in the Arnesh Kumar judgment reiterated that these conditions as a “checklist” to be provided to all police officers. It also said that if reasons for arrest and authorising detention are not recorded, the police officer and the judicial magistrate shall be liable for departmental action.
In the Faruqui case, his counsel has alleged before the Supreme Court that these “safeguards” were not followed before his arrest.
How is interim bail different from regular bail?
In the CrPc, sections 436 to 450 provide procedures for grant of bail in criminal cases the power to a court to release an accused on bail, grant of bail in non-bailable offences, anticipatory bail, procedures for bail including personal bonds, sureties. Interim bails can be granted pending the disposal of the main bail application which may require a longer time to decide.
The 2009 Supreme Court judgment in Lal Kamlendra Pratap Singh vs State of UP stated that in appropriate cases, “interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person’s reputation”.
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