Wednesday, July 6

Politics over process in Bagga arrest: Why this can set a bad precedent


Politics trumping process — this lies at the heart of the row over the arrest of Delhi BJP spokesperson Tajinder Pal Singh Bagga. Inter-state arrests are routine and they mandate cooperation between the local police where the arrest is made and the police where the offence is said to have taken place. The cooperation, as stated by courts, extends to prior intimation and involvement in the arrest.

The CrPC guides both letter and spirit.

But the Bagga case has shown how bitter politics transforms a routine procedure into a full-blown inter-state row and sets a disturbing precedent for states to prevent arrest by another state or the Centre.

Article 22 (2) of the Constitution states that “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.”

Ordinarily, the “nearest magistrate” is assumed to be the magistrate in whose jurisdiction the FIR is registered if the individual can be produced within 24 hours. The crucial 24-hour rule allows police to skip obtaining a transit remand from a local magistrate where the arrest is being made.

In 2018, the Delhi High Court, ruling in Anand Agarwal v Union of India, upheld the CBI’s decision to not obtain a transit remand for the arrest of an individual in Raipur “since the CBI did not anticipate that more than 24 hours after his arrest would be needed to produce the Petitioner before the jurisdictional Court in Delhi.”

A transit remand is a magistrate’s order to transfer or grant custody of an arrested person so the police can shift the person in custody from the place of arrest to the place where the matter can be investigated and tried. A hearing for transit remand before a magistrate allows an opportunity for the arrested to seek bail and contest the transfer before it happens. In contrast, producing before a magistrate in a new state, even within 24 hours could make it difficult for the arrested individual to engage a lawyer and seek bail.

From Disha Ravi’s arrest in Bengaluru in 2021 to Jignesh Mevani’s arrest in Gujarat last month, several arrests, high profile or otherwise, have been made without a transit remand.

Delhi BJP president Adesh Gupta feeds sweets to party spokesperson Tajinder Pal Singh Bagga at the latter’s residence in New Delhi, Friday night, May 6, 2022. (PTI Photo)

The Indian Express spoke to several legal experts who questioned if the cooperation of the local police can extend to resisting or denial of the arrest itself.

“The power to arrest arises from the FIR which means it rests with the police in whose jurisdiction the offence is committed. If it is a cognisable, non-bailable offence, the person can be arrested without a warrant, provided he is produced before a magistrate within 24 hours,” an advocate said.

“Arrest without intimating local police is at best irregular but not illegal if the person is produced before a magistrate,” a senior advocate said.

A legal question for determination will be whether the local police can compel the police from another state to produce the arrested person before a local magistrate before transfer. Ultimately, the determination of whether an arrest is valid or not is made by a magistrate and not the police.

What also raises questions is the unusual manner in which Haryana police intercepted the police convoy of another state and took custody of the arrested individual, all without the intervention of a magistrate.

The blocking of the Punjab police convoy also violates the law which states that a public servant cannot be prevented or detained for discharge of official duties when believed to have been done in good faith. The Delhi Police’s registration of an abduction case, after being intimated of an arrest by the Punjab police, also raises questions of overstepping the law.

Legal experts expressed apprehension that the Bagga case could set a new precedent for states to prevent arrests by Opposition-ruled states, raising questions on a state’s powers in a federal structure in a fraught political environment.

Most Central agencies such as the Enforcement Directorate and CBI already routinely file cases involving those in Opposition-ruled states in Delhi, and not in the respective states to ensure arrest is not risked.





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