Policy on Bagga’s arrest process: Why it may set a bad precedent

Process of prevailing over politics – this is at the heart of the dispute over arrest of Delhi BJP spokesperson Tajinder Pal Singh Bagga. Interstate arrests are common and require cooperation between the local police where the arrest is made and the police where the offense is believed to have occurred. Cooperation, as the courts have indicated, extends to prior denunciation and participation in the arrest.

The CrPC guides both the letter and the spirit.

But the Bagga case has shown how bitter politics turns routine litigation into a full-fledged interstate dispute and sets a disturbing precedent for states that prevent arrest by another state or the Center.

Article 22 (2) of the Constitution stipulates that “Anyone arrested and taken into custody must be brought before the nearest magistrate within twenty-four hours of such arrest, excluding time necessary for the trip from the place of arrest. in the court of first instance, and none of these persons may be detained beyond the said period without the authorization of a magistrate.

Normally, the “nearest magistrate” is assumed to be the magistrate in whose jurisdiction the FIR is registered if the individual can be presented within 24 hours. The crucial 24-hour rule allows police to avoid obtaining a transit referral 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 not to obtain a transit referral for the arrest of an individual in Raipur “as the CBI had no not anticipated that more than 24 hours after his arrest would be required to produce the petitioner in the Delhi Magistrates Court.”

A remand is an order by a magistrate to transfer or grant custody of an arrested person so that the police can move the person in custody from the place of arrest to where the case may proceed. subject to investigation and trial. A transit remand hearing before a magistrate allows the arrested person to apply for bail and challenge the transfer before it occurs. By contrast, appearing before a magistrate in a new state, even within 24 hours, could make it difficult for the arrested person to hire an attorney and seek bail.

From the arrest of Disha Ravi in ​​Bengaluru in 2021 to the arrest of Jignesh Mevani in Gujarat last month, several arrests, both publicized and unreported, have been made without pre-trial detention.

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

The Indian Express spoke to several legal experts who questioned whether local police cooperation could extend to resisting or denying the arrest itself.

“The power to arrest derives from the FIR, meaning it rests with the police in whose jurisdiction the offense is committed. If it is an offense subject to criminal penalties, the person can be arrested without a warrant, provided they are brought before a magistrate within 24 hours,” a lawyer said.

“Arrest without intimidating local police is irregular at best but not illegal if the person is brought before a magistrate,” a veteran lawyer said.

A legal question to be decided will be whether the local police can compel the police of another state to present the arrested person before a local magistrate before his transfer. Ultimately, the determination of whether or not an arrest is valid rests with a magistrate, not the police.

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

The blocking of the Punjab Police convoy also violates the law which states that a public official cannot be detained or detained for carrying out his official duties when he is presumed to have done so in good faith. Delhi police recording a kidnapping case, after being informed of an arrest by Punjab police, also raises issues of overstepping the law.

Legal experts have expressed concern that the Bagga case could set a new precedent for states to prevent arrests by opposition-led states, raising questions about a state’s powers in a federal structure in a difficult political environment.

Most of the central agencies such as the Directorate of Law Enforcement and the CBI already regularly file cases involving people in the opposition led states in Delhi, not the respective states, to ensure that an arrest is not risky.

About Charles D. Goolsby

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