The arrest of the former Delhi Deputy Chief Minister, Manish Sisodia, by the Central Bureau of Investigation (CBI) recently has once again created a debate about the fundamentals of law enforcement. Many have criticised the CBI’s move as unwarranted — one that was actuated by political considerations. Unfortunately, only a few seem to understand the intricacies of the underlying provisions of the law on arrests. No premier investigating agency would dare resort to peremptory action such as an arrest of a prominent public figure without preparing the ground in the form of the evidence available in documents and oral statements. It is an entirely different matter to allege that the CBI does not proceed with the same zeal evident in the Sisodia case against many other public figures who also face serious corruption charges. It is also preposterous to believe that an agency such as the CBI will be totally free of bias or selectivity. However, to view every arrest of a political personality as malicious is illogical and difficult to substantiate.
The two sides
Arrests involve a grave human rights issue, often ignored by many law enforcement officials. The debate on the rightness or otherwise of an arrest will remain unresolved. This writer faced the dilemma when he was heading the CBI more than two decades ago. A majority of his deputies fell in line with him whenever he advocated moderation, and advised that arrests should be made only when absolutely warranted. Even then the number of arrests was substantial causing him a lot of anguish. There were a few hawks in his team who disagreed with what they considered was his soft approach. They believed that an arrest was the only deterrent to dishonesty in public life, particularly when court processes were exasperatingly slow and more often than not, courts tended to be too liberal and unreasonably swift to give the benefit of doubt to an accused even if there were minor infirmities in the prosecution story.
This writer recalls the statement of an English judge who, while acquitting an accused charged with murder, said: “I know it was you who committed the murder (of a TV celebrity), but I have no evidence to prove your guilt.” This is the huge shortcoming in the law which demands absolute proof of crime and nothing less. Therefore, the question that many law enforcement officials ask is when the dice is loaded against enforcement officials, why cannot they use the only weapon (arrest) available to them without any dictates of law?
Ask the most profound of jurists and the most sober and balanced crime investigators on whether any solid guidelines could be drawn to regulate arrest. In reply, they will hum and haw but not give a formula. The truth is it will be preposterous to attempt a prescription that fits every case. Taking advantage of this lacuna, many accused persons, when arrested, knock on the doors of the judiciary immediately after their arrest, seeking court intervention and clemency. A few judges at the lower echelons are taken in by the emotion-laden arguments of the defence lawyer and grant bail to the accused even when produced for the first time after an arrest.
Procedure of arrest
The Code of Criminal Procedure 1973 lays down the procedure to effect an arrest. Section 41 debunks the commonly held belief that a police officer must necessarily obtain a warrant from a magistrate before making an arrest. Arrests can be made without a warrant provided the officer making it is convinced that there was no time to obtain one, and records the reasons in the general diary of the police station or the police branch (notified as a police station within the meaning of the Cr.P.C) concerned for not obtaining a warrant prior to the arrest.
The main stipulation of the law and judicially accepted norms are that the officer should not use any force to effect an arrest unless the accused himself chooses to be violent. There is also the constitutional provision (Article 22) that a detained person should be apprised of the grounds of arrest as soon as possible and be produced before the nearest magistrate within 24 hours (excluding travel time) of taking him into custody. It is also incumbent on the official concerned to keep the closest relative of the accused informed that the person is in custody at a specified place.
Beyond these safeguards there is nothing in the Criminal Procedure Code that reduces the discretion of the police or law enforcement officials in making an arrest decision. This is where the shoe pinches. The investigator enjoys absolute freedom in opting for an arrest. It is his judgement alone that influences a decision. In the oft-quoted D.K. Basu vs State of West Bengal also, while the top court laid down the detailed procedures for an arrest, it did not in any way dilute the discretion of a law enforcement agency in making arrests.
This is why this writer is often exercised over some judges questioning the investigating officer over why an accused was arrested. In spite of this clear legal position, there are a few cases where the trial judges concerned question the prosecution as to why ‘A’ was arrested and why ‘B’ was not. In raising such a query, this writer believes that courts overstep their authority. This is because in cases where they suspect that an arrest decision was mala fide, they (judges/magistrates) have the authority to initiate action against an investigating officer who they believe had definitely acted out of malice. This is the deterrent built into the system against arbitrary arrests and is the rationale behind a court-monitored investigation.
Looking within
Given this scenario, how do we ensure that arrests are made in the most scrupulous manner? When the law is silent in the matter it is the basic responsibility of senior law enforcement officers, at the Centre and in the States to ensure sobriety and objectivity. This is difficult in a politically charged ambience where many governments bring enormous pressure on senior officers to dramatise the opportunity and make vindictive arrests to settle personal scores and influence public opinion. Officers investigating sensational cases involving high personages require protection and guidance by the higher echelons. If the latter fail to stand up to unethical pressure nothing can save us from blatantly unjust arrests. Senior officers will have to explain to those in government baying for dramatic action that an arrest will be made at the appropriate stage of the investigation after the gathering of solid evidence, and only on grounds of collecting further evidence through personal custodial interrogation endorsed by the competent judge. An arrest in any other circumstance will be subject to scrutiny by courts. And, where bias is writ large the latter will come down heavily on the investigating officer, with legal action taken against him if need be.
R.K. Raghavan is a former Director of the Central Bureau of Investigation (CBI). He is currently Professor of Criminal Justice and Policing at the Jindal Global University, Sonepat, Haryana
