Legal regime and SC rulings may ward off Brij Bhushan's arrest

The Delhi Police on Thursday submitted its charge sheet before a Delhi court, recommending the trial of Bharatiya Janata Party MP and former Wrestling Federation of India chief Brij Bhushan Sharan Singh on alleged charges of assault with intent to outraging modesty, stalking and sexual harassment of some prominent female wrestlers who had complained against him.

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According to the police, Singh has been charged under sections 354 (assault or criminal force with intent to outrage modesty), 354A (sexual harassment) and 354D (stalking) of the Indian Penal Code (IPC).

While all the three offences are considered to be serious offences against women and entail maximum punishment of five years in jail, it is unlikely that Singh will face an imminent arrest.

Rulings for arrest

The Code of Criminal Procedure (CrPC) coupled with a raft of Supreme Court judgments lays down that it is not mandatory to arrest an accused if the maximum punishment prescribed for the offences involved is less than seven years in jail. Another set of rulings adds that if an accused is not arrested during the probe, there must be special reasons if the investigating agency or the court wants his arrest after the filing of the charge sheet.

Section 41 of the CrPC prescribes that a police officer can arrest a person for a cognisable offence with a jail term up to seven years only when it is expedient in the interest of the investigation to do so or to prevent them from committing any further offence. The law requires the police officer to record in writing the reasons for making arrest.

The police officer, in all other cases where the arrest of a person is not required, is obligated under Section 41A of CrPC to issue a notice of appearance. “Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested,” adds Section 41A of CrPC.

Court judgments

The 2014 landmark judgment in Arnesh Kumar Vs State of Bihar elucidated the purposive interpretation of Section 41 CrPC, holding that an arrest for offences carrying maximum punishment up to seven years in jail can be made only after satisfying the twin condition — that there is a reason to believe or suspect that the accused has committed an offence, and there is a necessity for an arrest.

“In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose will it serve? What object will it achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised,” said the top court, adding the law mandates the police officer to record the reasons behind making arrests. The Arnesh Kumar judgment further said that a magistrate is duty-bound to release an accused if the investigating agency fails to show compliance with the requirements under Section 41 of CrPC.

In July 2022, the Supreme Court, in Satender Kumar Antil Vs CBI, directed strict compliance with its 2014 judgment, holding that investigating agencies must refrain from arresting accused for offences entailing punishment up to seven years in jail without explicitly specifying the need to do so. A trial court shall not approve the detention unless satisfied by the reasons cited by the police, ordered the bench led justice Sanjay Kishan Kaul.

The bench, in the July 2022 judgment, further referred to a string of guidelines issued by the Delhi high court in 2018 on the procedure to be followed by the police while seeking presence of a suspect for questioning, directing that all states and Union territories issue standing orders for the procedure to be followed before making arrests and summoning suspects.

Notably, the Supreme Court has not only issued guidelines against routine arrests at the stage of investigation but also laid down norms after the charge sheet is filed pursuant to completion of the probe.

In Siddharth Vs State of UP (2021) and again in the Satender Kumar Antil judgment, the top court declared that if a person has not been arrested during the investigation and there is no complaint against him of non-cooperation, he is not required to be arrested just because a charge sheet has been filed against him.

“If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused,” said the top court.

The other side

The legal position buttresses the Delhi Police’s version that it may not be compulsory for them to arrest Singh after the filing of the charge sheet. But there have been instances in the past when the Delhi Police acted otherwise.

In June 2022, Delhi Police arrested Alt News co-founder and fact-checker Mohammed Zubair over a 2018 tweet for allegedly hurting Hindu religious sentiments, even as the charges invoked against him entailed a maximum punishment of less than seven years in jail.

Zubair was charged under sections 153A (promoting enmity between different groups on grounds of religion) and 295A (deliberate and malicious acts intended to outrage religious feelings) which could fetch him a maximum three years in jail. He was granted bail after a fortnight of his arrest by a Delhi court, which noted that “free speech is the proper foundation of a democratic society” and that “the voice of dissent is necessary for a healthy democracy.”

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