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In a move to stem illegal arrests, the Madras High Court has said that they should not be made in criminal cases at the investigation stage itself and Friday arrests should be checked

By R Ramasubramanian in Chennai      

In an order aimed at giving accused persons some relief from police arrests, the Madras High Court has ruled that they need not be arrested in all criminal cases at the stage of investigation itself. The Court further added that the probe can be carried out effectively even without custodial interrogation.

The issue cropped up in the court of Justice Anand Venkatesh during the hearing of the anticipatory bail petition of a person accused in a matrimonial dispute. The petitioner was accused of a second marriage while the first marriage was still valid as he had not taken a divorce.

The judge told the prosecution that “the police should pull up their socks and show more quality and maturity in investigations. We are getting overloaded with the filing of anticipatory bail petitions by various people apprehending detention, especially against ‘Friday arrests’, a popular euphemism for arrests carried out on Fridays or a day prior to court holidays to ensure that the accused does not come out on bail immediately”.

The judge added: “The police must be made to understand that all criminal cases need not necessarily involve arrest of accused persons during investigations and an effective investigation can be done even otherwise. A change in attitude will bring down unnecessary filing of anticipatory bail petitions. A change in attitude if it could be effectively implemented at the investigation stage in matrimonial, commercial and property disputes and in other such minor offences will bring down filing of anticipatory bail petitions. Ultimately the aim was to stop unnecessary and illegal arrests.”

The judge said that it was not necessary that the police should resort to the procedure under Section 41 A of the Code of Criminal Procedure (CrPC) when an anticipatory bail petition is filed. He said that the police could independently take a decision in accordance with the guidelines. Under Section 41 A of the CrPC, a police officer in all cases where the arrest of a person is not required, shall issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received to appear before him.

Justice Venkatesh concluded: “Henceforth in all anticipatory bail petitions filed before the Madras High Court and where the offence concerned carried a punishment of up to seven years, the police should instruct the public prosecutor as to in which case they would invoke Section 41-A. The court would pass the necessary orders after recording the decision of the police with re­gard to 41-A.”

Many lawyers in Tamil Nadu agreed with this judgment and said it was the need of the hour. “This is a welcome judgment. Friday arrests are a common thing in Tamil Nadu for the past few decades. Interestingly, over 50 percent of these arrests are connected with matrimonial disputes and political activities of Opposition parties,” said Kasinatha Bharathi, an advocate in the Madras High Court. “Rampant misuse of the anti-dowry Act has been going on unabated in Tamil Nadu for the past several years. Though the Supreme Court had warned the police against misusing this Act, there was little improvement at the ground level. I hope this judgment will help innocent people and put a brake on the gross misuse of laws by the police.”

Echoing the same view, T Annamalai, counsel for the petitioner in this case, told India Legal: “This is a great step in the right direction. In spite of the apex court’s repeated rulings and warnings against the misuse of the anti-dowry Act, it is going on unchecked in Tamil Nadu. The Supreme Court had cautioned the police that while registering FIRs against those who were accused, utmost care must be taken.

“For example, in several FIRs, relatives of the accused, who lived hundreds of kilometres away from the complainant’s home, were also made an accused. This is glaring misuse of laws. The Supreme Court had also repeatedly said that you cannot punish a person on the basis of mere imagination. In cases of matrimonial disputes and dowry cases, there were incidents galore where innocents were punished by the lower courts, but later acquitted by higher courts.”

Apart from matrimonial disputes, political activities of Opposition parties constitute the second biggest chunk of Friday arrests. “Whenever a political party plans a big protest on a sensitive issue, the government of the day unleashes Friday arrests, especially if the protests are planned for the weekend or a Monday. This action was at its peak from 2008 till May 2009 when the Sri Lankan civil war was at its peak. The quantum of these arrests has come down in the past 10 years,” said P Srinivasan, an ex-member of the Marumalarchi Dravida Munnetra Kazhagam led by former MP and votary of the Sri Lankan cause, Vaiko.

But the police have a different take on this issue and says that this order will hamper the functioning of efficient officers. “This order has been delivered with good intentions. The Court is of the view that innocents should not be harassed at the hands of corrupt officers. But at the same time, one has to look at the ground reality. Even if station house officers call a person verbally for an inquiry on the basis of a complaint, he rushes to court for anticipatory bail. This affects the conciliatory efforts of local police officers in marriage disputes,” said M Karunanidhi, a retired superintendent of the Tamil Nadu police. He said conciliatory efforts actually prevented suicides and murders in family disputes.

He added: “While the Madras High Court order has been delivered with good intentions, it has the potential to affect the morale of honest police officers because they cannot use the arrest weapon to get justice for innocent victims. On the other hand, it will further embolden corrupt and inefficient police officers as they will take shelter under these orders which prevent Friday arrests. This will also be exploited by hardcore criminals.

“The most affected will be innocent people who are cheated by those running chit funds. I have seen hundreds of cases where the mere warning of an arrest has worked wonders and those cheated are given their respective dues with interest in front of police officers.”

That is perhaps a view that should be taken into consideration also.

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