Fast, Fake and Furious

8/2/2019 Fast, Fake and Furious

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Fast, Fake and Furious : Anomalies in Arrest Procedure:

By Anil Nauriya

A recent case of a Gujarat magistrate who issued arrest warrants against the President of

India, the Chief Justice of India, a Supreme Court judge and a former President of theSupreme Court Bar Association, has evoked interest in the media. There has been publicconcern essentially over the circumstances in which this order was procured and about howthe names of the dignitaries concerned were disguised by not mentioning their designationsand by seemingly spelling the names in full rather than as they are usually written. Thecomplainant there is a doubt whether the person in whose name the complaint was filedis real or virtual simply approached a magistrate and made an apparently fictitious claimof having been cheated or defrauded.

The criminal justice process reached the arrest warrant stage without anyone taking the precaution of finding out whether there was an iota of truth in the complaint. Why did this

happen in this particular case? How could such a thing happen under criminal procedure?The Supreme Court is seized with the first question and it is not desirable to comment on it.But the second question can and should be discussed.

A vital point to note about the ordinary criminal procedure (as distinguished from so-called special laws like the earlier Terrorism and Disruptive Activities Prevention Act) isthat it is not in fact ordinary. As in the case of the existing Code of Criminal Procedure,1973, applicable in India, criminal procedure in post-colonial societies is modeled on or isan outgrowth of colonial procedure. Many provisions have been mechanically continued.

There are several problem areas in criminal procedure relating to case registration, police

powers of arrest in respect of certain offences considered graver than others, magisterial powers to direct investigation and, in given situations, issue warrants of arrest, and, finally,in the investigation itself. These aspects of criminal procedure lend themselves toconsiderable abuse by the police and the subordinate judiciary.

The Code enables a complaint to be made to a magistrate under Section 190 and certainother provisions in case the police do not register an FIR on their own or after a complaintis made to them. On being so approached, magistrates have a variety of options,superimposed on, and sometimes even apart from the usual classification of offences on the

basis of seriousness. But broadly during the pre-trial stage there are two magisterialapproaches that may, with some risk of simplification, be called the Red and GreenChannels. The first is to insist on some elaborate evidence or material being brought onrecord by the complainant before setting the law in motion. The second is to simply takethe complaint on record, ask the complainant a question or two, and initiate the process bydirecting the police to investigate and, if necessary, issuing summons or warrants as thecase may be. Complaints about cognisable (that is, cases in which the police may arrestwithout warrant) and non-bailable offences often tend to go through the Green Channel.

The difference in the two approaches is ironical and paradoxical. Thus if a parent finds that


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a minor daughter has been enticed into a child marriage, and the police have failed to takeaction against those who organised it, the complaint would generally have to travel throughthe Red Channel. A child marriage is not necessarily treated as void in personal law, butthose who organise it are liable to some minor punishments. A complainant under Section190 of the Code read with the Child Marriage Restraint Act of 1929 would have to produce

what is known as pre-summoning evidence before the magistrate. Long dates might befixed by the magistrate. Unless other steps are taken, the minor girl might even have produced a child and come of age by the time summons are actually issued to the accused persons.The Green Channel operates differently. These cases include but are not limited to matterswhere the police are empowered to make arrests on their own. In a given case, the policemay register an FIR and, if empowered, effect arrests on their own initiative.

On the other hand, they may choose not to do so because of political or other pressure.They may also drag their feet for the reason that they are aware of the false and vexatiousnature of the complaint. The complainant must then approach the magistrate concerned. At

this stage there are few strong safeguards to sieve out fabricated complaints. In fact, if thecomplaint is fabricated it stands a better chance of receiving Green Channel treatment if italleges the commission of a serious offence, usually referred to as cognisable and non-

bailable. Odd though it may sometimes seem, in such matters elaborate preliminaryevidence is not insisted upon as much as it is in the case of lesser offences.

The magistrates are quicker in such cases to direct police investigation and, as the Gujaratmagistrates case shows, even go further and issue arrest warrants; the initial burden placedupon the complainant by the magistrate is much lighter in such cases. Even a mere order for investigation means, under some judicial decisions, that the police must nownecessarily register an FIR. The registration of an FIR implies, in most such cases, arrest of

the persons complained against. Since colonial days, the police have often treated as deadletters provisions like Section 41 of the Code which require credible information andreasonable suspicion before the police may arrest a person without warrant. Similarly,during investigation the police have traditionally taken little notice of the stipulation inSection 157 of the Code that an arrest is to be made when it is necessary; there is littleappreciation of the fact that the test of necessity is a condition precedent to arrest.

The upshot is that under the existing Code of Criminal Procedure it is easier to obtain, withmagisterial aid, arrest of persons in a false case concerning serious-looking offences than toobtain, in a genuine case, even a summons to the wrong-doer in what the law treats as lessserious offences. The law offers a Green Channel for the first category and a Red Channelfor the second category. There are no remedies to this particular malaise; much dependsupon the human material in the police and in the subordinate judiciary. But three importantsafeguards may be suggested. First, if it is not a capital case involving murder or rape or acase where there is a chance that the person against whom the charges are made would fleethe country, there is no reason why a prior inquiry cannot be made before the criminal

process is permitted to reach the stage of arrests or warrants for arrest. Second, if thecomplaint is not for a capital offence an affidavit ought to be required at an early stage


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from the complainant affirming the truth of the averments made by him. In the case of capital offences, which may involve greater urgency, such an affidavit may follow later.

Recently the Civil Procedure was amended to require the plaintiffs affidavit in civil suits.There is greater reason for such affidavits to be required in respect of criminal complaints.

The penal law does provide for punishment for filing false complaints. But the suggestedaffidavit requirement could help discourage false complaints at the threshold. Third, further safeguards are required in cases of cross complaints that is complaints made by more thanone side against one another about the same incident or group of incidents. Such situations,often generated by business or political rivalries, are a common source of mischief.Sometimes the police, having registered the initial FIR, do not register the counter complaint, knowing or believing it to be false. At other times the reverse happens. Thesemoves are accompanied with a complex interplay of the political, business and legal

process, with unpredictable and ever-changing results. The complaint made by one sidecould even be suppressed. A cross complaint may be activated. Much depends on who wascontacted by whom e.g. Politicians in New Delhi instructing Commissioners of Police,

Fascist outfits functioning under a sham civil rights signboard in Ahmedabad. All participate in determining the outcome of a process in which criminal procedure is reducedto naught.It should be mandatory for a complaining party to disclose, in its own complaint before amagistrate, any prior complaints pending against it that may be connected with the sameincident or party. A similar responsibility of disclosure must rest upon the police so thatsuch cross complaints may, where appropriate and necessary, be taken up together in thecriminal process. The criminal justice process must insist, to the extent this is attainable,upon truth at each stage rather than truth deferred in a bid to achieve interim and collateralobjects.

Finally, closer attention is required at the drafting stage.When the present Code was being drafted and the then Attorney-General appeared to givehis evidence before the Joint Committee on the Draft Bill in October 1971 the followingexchange occurred:Chairman: Mr. Attorney General, you must have been very busy...Witness: I have not gone into the matter in detail; I had no time.

Chairman: Have you gone through the Questionnaire?Witness: I have read this Press Communiqu.

Chairman: And the Bill?Witness: No.(Joint Committee on the Code of Criminal Procedure Bill, 1970, Evidence, Volume II, p.178).

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