Probe agencies left red-faced with court orders on ‘illegal’ arrests

PTI, Jan 12, 2025, 1:22 PM IST

Mumbai: A series of court orders here recently directing for the release of accused citing “illegal arrest” have come as a setback for probe agencies, with prosecution lawyers calling for a balanced approach while defence counsels insist on following norms.

In most of these cases, the arrests were without “application of mind,” a defence counsel claimed, while the prosecution lawyers batted for victims’ rights.

In December 2024, the Central Bureau of Investigation arrested six persons, including two IRS officers, in a bribery case, but a special court here denied the CBI custody of the accused after finding their arrest as “illegal” and ordered their immediate release.

Over the last six months, several remand pleas of probe agencies, such as CBI, Enforcement Directorate (ED) and local police, in courts here have met the same fate.

In most cases, the defence’s submission was centred around the probe agencies not following the Bharatiya Nagarik Suraksha Sanhita provisions, like not maintaining case diary properly, not providing the ground of arrest to the accused immediately or not producing him in court within 24 hours of the arrest.

Speaking to PTI, advocate Rahul Agarwal, who has appeared for a few accused persons, claimed, “They (investigation agencies) are not following provisions laid down in the law and guidelines set by the apex court and high courts in letter and spirit.” “The Supreme Court’s guidelines clearly state that there needs to be a physical ground of arrest given to the accused or the arrest will be declared illegal,” he said.

In the bribery matter against IRS officers, the special CBI court noted the case diary had loose sheets of papers, which amounts to contravention of the provisions of law, as per a ruling of the Bombay High Court ruling.

The court said it is necessary for the investigation officer to ensure all case papers are maintained properly.

In another jolt to the CBI, the court refused it the transit remand of ED officer Vishal Deep arrested in a bribery case, noting “the prosecution’s failure to produce the case diary shakes its case”.

The court held it as a “serious lapse” while rendering the arrest illegal.

The ED was also left embarrassed last year when a special PMLA court set free businessman Purushottam Mandhana, accused in a money laundering case, for not providing the ground of arrest and copy of “reasons to believe” that he is guilty of the offence.

Local police have also faced rejection of their remand pleas by courts on accounts of arrest not being proper.

A magistrate court here recently ordered the release of a man booked for allegedly posting online a manipulated video of Chief Minister Devendra Fadnavis’s recent speech on Naxalism.

In a solace for police, a sessions court last month came down heavily on a magistrate for taking a “hyper technical view” while declaring the arrest of rape accused film producer Gunwant Jain as “illegal”, as the police were late by just four minutes in communicating the ground of arrest to the accused.

The sessions court ordered the accused to surrender before police.

Senior advocate Satish Maneshinde said in most of these cases the arrests were “mechanical” without “application of mind”.

“The police officers do not have enough knowledge or they don’t apply their mind, so with those non-compliances, the prosecution was violating the principle of natural justice and fundamental rights,” he added.

However, batting for a balanced approach, lawyers representing the state are of the opinion that victims’ rights are equally important.

Why should a victim suffer if the investigation agencies have made a mistake? they asked.

Senior special prosecutor Ujjwal Nikam, who has represented the state in various high profile cases including the 1993 Mumbai bomb blasts case, vouched for a balanced approach and said probe agencies should also get an opportunity for custodial interrogation of the accused.

“No doubt it is mandatory that the grounds of arrest be informed to the accused and their family too, so that the personal liberty of the accused is not jeopardised,” Nikam said.

It’s time for some amendment in the said provision because some hard nuts (accused) are very difficult to crack and their custodial interrogation is necessary, which does not mean ill-treatment, but asking constant questions, he added.

Special Public Prosecutor Shishir Hire batted for victims’ rights.

” If an accused is absconding, he is aware that police are running behind him and he knows the reason for his arrest also, so you cannot apply these routine parameters to the absconding accused,” he said.

“There is also the concept of victimology…the police make a mistake…you will give its benefits to the accused, what about the victim? We need to be concerned about the victim…victimology is a new brand that is emerging and that is more important than the accused,” he added.

Advocate Jitendra Sharma, who has represented the CBI in several cases, said if such cases are decided by the judiciary, then how will an investigation agency proceed with the probe in matters of “collusive corruption”, where private and public servants are “hand-in-glove”.

“Arrest is illegal or legal, it is the prerogative of the judiciary. Simultaneously, the probe agency also has to conduct the investigation in a fair manner and that chance should be provided by it, otherwise it will create a bottleneck in the investigation,” he added.