The Supreme Court on the 5th of Feb granted comedian Munawar Faruqui ad-interim bail. The order issued by the supreme court had clear legal reasoning for the bail-in 11 lines. The bench of Justices Rohinton Nariman and BR Gavai in Munawar’s case employed the correct process for arrests mentioned in our law. These processes belong to Section 41 of the Code of Criminal Procedure.
Thus, in comparison to the 10-page order by the Madhya Pradesh High Court that denied bail to the comedian, this order proves to be more relevant.
This judgment also draws references from the 2014 Arnesh Kumar vs State of Bihar judgment.
Justice Nariman on 5th Feb remarked that if these guidelines were not followed, then “that would be enough” to ensure a bail to Munawar. Thus the order released later corresponds to this. It calls the FIR against him “vague” and said that the arrest violated the rules of Section 41 and the Arnesh Kumar decision.
What is section 41 of the CrPc?
Section 41 of the CrPC talks about all the times when the police have the power to arrest someone without a warrant. This is a crucial provision as it lays down the powers of arrests without any scrutiny of the judiciary. This is power is given for the acts of ‘cognizable offences’, ie, offences that require swift action to deal with.
However, there are only certain situations when the police can arrest someone without a warrant. The first obvious situation is when the police are the live witness to the cognizable offence. The other situations include when someone is declared as a proclaimed offender or someone who has some stolen property in their possession. It also includes when someone is a deserter from the Armed Forces or is a convict who has breached the terms of their parole.
This section has two crucial parts that need to be noted. They are Section 41(1)(b) and 41(1)(ba). This works around the arrest of a ‘suspect’ probed to have committed a cognizable offence where the police is not a live eye-witness. These include the common situation when someone files a complaint with the police. It also incorporates the event when the police lead an investigation about a crime.
Section 41(1)(ba)- Maximum punishment is more than 7 years
Such offences include the ones of murder, rape, or terrorism under the Unlawful Activities (Prevention) Act (UAPA). Here the maximum punishment is more than seven years’ imprisonment. When accused of these kinds of cognizable offences, the power of the police to arrest becomes much lucid. They, however, only require to have concrete and credible information in context to the offence.
Section 41(1)(b)- Maximum punishment is 7 years or less
The accused of a cognizable offence when the punishment is up to 7 years or less has a different pattern. In these cases, to begin with, the police have to show that they possess a credible complaint or information about the alleged offence. However, this provision makes it necessary for further pre-requisite to be fulfilled before the arrest can be made. These conditions are outlined to ensure that arrest by the police is absolutely necessary. Hence, the person is only as a means :
- to disallow them from committing a further offence;
- for proper investigation of the offence;
- to prevent them from damaging with evidence of the case or to prevent them from threatening/influencing witnesses;
- to prevent them from absconding.
Thus, the police cannot undertake the arrest if these conditions are not met.
Co-relating the Arnesh Kumar judgment and the case of Munawar Faruqui.
The Arnesh Kumar case dates back to 2014. It was about allegations of cruelty by a woman against her husband and his family. The maximum punishment for this crime was imprisonment for three years along with a fine under Section 498A of the IPC. The supreme court observed that people accused under 498A were arrested without fulfilling the conditions under Section 41 when the maximum punishment is less than or equal to 7 years. Thus, the court contemplated how arresting can be used as a method of oppression on the accused.
Thus, these conditions (enlisted above) have been implemented since 2010. Section 41 A was added to give some security to police investigations. This means, if an accused cooperates and complies with the notice issued by the police, he/she will not be immediately arrested. To ensure the rights of the accused are safeguarded, it was made a rule that when a person is arrested, they have to be produced before a magistrate within 24 hours. Further, the supreme court said that they can be only detained when the magistrate approves of it.
The Quint reported about the remarks of the Supreme Court in Arnesh Kumar's judgment. It said “Arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers 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 the 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 for the police officers who lack sensitivity or act with oblique motive.”
What is this judgment of the supreme court got to do with Munawar’s case?
Munawar’s arrest was questionable at multiple levels.
Town Inspector of Tukoganj Police Station Kamlesh Sharma had earlier confirmed, “There’s no evidence against him for insulting Hindu deities or Union Minister Amit Shah.”. He further added that the two videos submitted by Gaud, the complainant, were of another comedian. Thus, the arrest needed further strong pieces of evidence to prove the crime was committed.
Keeping this aside, Faruqui’s lawyer stated multiple times that neither the Indore Police nor the magistrate followed the guidelines enlisted in Section 41. Munawar and his associate’s arrest was on the allegations based on Section 295A of the IPC. Hence, this section carries a punishment of three years’ imprisonment.
Thus, with the tenure being less than 7 years, the additional guidelines under Section 41(1)(b) had to be met. Hence, the arrest could only take place if those conditions were satisfied.
But in reality, it was a highly impossible case that the conditions would not have been met.
To begin with, the police themselves claimed they had all the evidence to prosecute the case. The evidence utilized here is the videos submitted by Gaud. Hence, there was no way the evidence could have tampered with.
In this situation, it is difficult to threaten witnesses as neither of the accused, here are influential people. In fact, the one who put this allegation is a sitting BJP MLA’s son. To deal with the issue of absconding, or committing further crimes, the use of Section 41 A, instead of an actual arrest would have actually made it easier.
The ad-interim bail of Munawar was made on the basis of reviewing all the case materials so far, including the high court’s order based on vague pieces of evidence.
Thus, the reference of Arnesh Kumar's judgment makes it important to understand the multiple discrepancies in Munawar's arrest. From the lack of concrete evidence to the failure in following the correct legal arrest processes, the arrest of Munawar does raise questions on our judicial system.