The order by the Supreme Court granting comedian Munawar Faruqui ad interim bail is only 11 lines long; despite that, it manages to say more than many lengthier judgments.
In particular, it contains far more relevant legal reasoning than the entirety of the 10-page order by the Madhya Pradesh High Court denying bail to the comedian.
That’s because, unlike the high court and the trial courts in this case (and indeed the Supreme Court in many cases), the bench of Justices Rohinton Nariman and BR Gavai in Munawar’s case have actually looked to and followed the procedure for arrests laid down in our law, which is meant to protect people from precisely this kind of brain-dead police action.
This procedure is not some secret, and it is not hidden away in some obscure legal textbook in a tower nobody can reach. It’s spelt out as clear as day in Section 41 of the Code of Criminal Procedure, that the police and the courts are supposed to know and follow.
And it was very clearly and simply clarified by the Supreme Court nearly seven years ago, in its 2014 Arnesh Kumar vs State of Bihar judgment.
During the brief oral hearings on Friday, 5 February, Justice Nariman noted that if those guidelines were not followed, then “that would be enough” to ensure that Faruqui had to be set free.
The order released later in the evening refers to Faruqui’s lawyers’ arguments that the FIR against him is “vague” and that his arrest violated the procedure for arrest under Section 41 and the Arnesh Kumar decision. It says nothing more, and yet that is more than enough.
But what exactly is that procedure for arrest, and why did it mean that Munawar Faruqui had to be granted interim bail? What are the guidelines that the Supreme Court laid down in 2014, and what do they mean for others who get arrested in frivolous cases like this?
Section 41 of the CrPC
Section 41 of the CrPC deals with when the police can arrest someone without a warrant.
This is one of the most important provisions in the entirety of Indian criminal law, because it prescribes the power of arrest where there has been no prior scrutiny by a magistrate. This power is given for what are called ‘cognizable offences’, ie, offences which can be seen as more serious or requiring swift action to deal with.
If there are no checks and balances on this power, it would basically allow the police to arrest anyone they want to on the flimsiest of grounds, regardless of the seriousness of the case against them.
So, when can the police arrest someone without a warrant?
The most obvious one is when someone commits a cognizable offence in the presence of a police officer.
There are several other situations covered in Section 41, including someone declared a proclaimed offender, who has some stolen property in their possession, is a deserter from the Armed Forces, or is a convict who has breached the terms of their parole.
The most important provisions of Section 41, however, are Section 41(1)(b) and 41(1)(ba).
These deal with the arrest of someone suspected of committing a cognizable offence in general (not in the presence of a police officer). Essentially, these are your day-to-day situations where someone files a complaint with the police, or where the police are investigating a crime.
The two sub-sections make a distinction between cognizable offences based on the maximum punishment that is prescribed in law. In India, as a rule of thumb, offences where the maximum punishment is up to seven years, are not viewed as ‘heinous’ crimes, and, therefore, someone accused of such an offence is seen as posing a lower risk to society.
Where Max Punishment Is More Than 7 Years - [Section 41(1)(ba)]
The police's power to arrest is much easier to exercise when it comes to someone accused of cognizable offences, where the maximum punishment is more than seven years’ imprisonment – such as murder or rape or sedition or terrorism offences under the UAPA.
In such cases, the police must have “credible information” that the person has committed such an offence; beyond that, there are no further preconditions for arrest.
Where Max Punishment Is 7 Years Or Less - [Section 41(1)(b)]
When it comes to someone who is accused of a cognizable offence, where the punishment is a maximum of seven years’ imprisonment, however, the situation is different.
In these cases, the police have to show that they received a “reasonable complaint” or “credible information” or have a “reasonable suspicion” that someone has committed such an offence.
But even this isn’t enough. Section 41(1)(b) prescribes additional conditions that have to be satisfied before an arrest can be made. The police have to also believe, on the basis of the complaint/information/suspicion, that the person’s arrest is necessary:
- to prevent them from committing a further offence;
- for proper investigation of the offence;
- to prevent them from tampering with evidence;
- to prevent them from threatening/influencing witnesses;
- to prevent them from absconding.
If those conditions are not satisfied, then the police cannot make an arrest without a warrant.
The Arnesh Kumar Judgment & Munawar Faruqui
In 2014, the Supreme Court was dealing with a case involving allegations of cruelty by a woman against her husband and his family under Section 498A of the IPC. The maximum punishment for this crime is three years’ imprisonment and a fine.
In that case, the judges noted that people accused under Section 498A were arrested most of the time without any consideration of the additional conditions under Section 41 for offences where the maximum punishment was seven years or less.
This led the court to a general discussion on the way in which the power of arrest is used by the police as a tool of “harassment” and “oppression”.
“Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police... The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, 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.”Supreme Court in Arnesh Kumar judgment
The judges noted that because of these concerns over the misuse of the power of arrest, the Law Commission had recommended the addition of the special conditions to the power of arrest for offences where the max punishment was seven years or less, back in 2001.
These conditions (explained above) have been in force in 2010. To ensure that police investigations are not hampered, Section 41A was also added to the CrPC, which gave the police powers to issue notices to appear before a police officer in such cases. If the person complies with the notice and cooperates, then the person is not to be arrested.
The Supreme Court noted that the problem was not just that police officers were ignoring the law and arresting people without being able to satisfy these conditions. The problem also extended to magistrates, who were not doing their job of ensuring that the police were following the law.
Whenever a person is arrested, they have to be produced before a Magistrate within the next 24 hours – they can only be kept in custody after that if the Magistrate approves their detention.
“The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused.”Supreme Court in Arnesh Kumar judgment
This is where the Arnesh Kumar judgment becomes important to Munawar Faruqui’s case. Because it is the argument of Faruqui’s lawyers (and pretty much any reasonable observer) that neither the Indore Police who arrested the comedian nor the Magistrate who authorised his detention complied with the requirements of Section 41.
The most serious offence that Faruqui and his associates have been accused of as per the FIR against them is Section 295A of the IPC. The maximum punishment for this offence is three years’ imprisonment (ie, less than seven).
Therefore, for the police to arrest him, the additional conditions under Section 41(1)(b) had to be satisfied. But it is difficult to see how this could possibly be the case.
- The police already had all the evidence needed to prosecute the case, according to their own claims, that they had a video recording of Faruqui’s performance. This also meant there was no risk of Faruqui being able to tamper with the evidence.
- Faruqui and his associates are not influential people who could threaten the witnesses – indeed the complainant is a sitting BJP MLA’s son and the key witnesses are his friends.
- The police could have also used a Section 41A notice to ensure that Faruqui couldn’t abscond, or commit a ‘similar offence’.
As a result, the arrest of Faruqui and his associates itself appears to be prima facie illegal. If the Magistrate, before whom they had been produced on 2 January, had done his job properly, he would also have come to this conclusion and would have refused to authorise their detention.
While granting bail, the Magistrate could have easily imposed any conditions necessary to ensure the accused couldn’t abscond, whether by marking attendance at the police station, cooperating with the police, surrendering their passport, etc. Yet, the Magistrate failed to do so.
The Supreme Court has not recorded any findings on these points as yet, and the authorities will get a chance to argue that the police had, in fact, kept all these factors in mind, that the courts which authorised detention did so properly.
However, the judges have made this decision to grant ad interim bail after reviewing the material on record, including the high court’s order. This shows that they too believe that the assertions of Faruqui’s lawyers are prima facie correct.
The invocation of the Arnesh Kumar judgment is particularly significant because it shows that the apex court is expecting the procedure for arrest to be followed to the letter – and a failure to do so will lead to the accused being granted interim bail at this early stage itself.
It is also significant because the Arnesh Kumar judgment includes a direction that a failure to comply with the procedure by the police will lead to departmental action and make them liable for contempt of court. A Magistrate, who authorises detention without the procedure being complied with, is to be liable for departmental action.
This raises the possibility that if the court does eventually make a finding that the procedure under the CrPC was not followed for Munawar Faruqui’s arrest and detention, it could mean some actual consequences for the police officers and the Magistrate in question – which will also be helpful in sending a message against such baseless arrests and detentions in other cases as well.