(This is guest post by Archit Sinha)
The Calcutta High Court, on June 8, 2023, restrained the state police from issuing notices to the accused in connection with Contai Police Station Case No. 46 of 2022, dated 31.01.2022. The order was passed in the case of Sutapa Adhikari and Ors. v. The State of West Bengal & Anr. The impugned notices were issued under section 160 of the Code of Criminal Procedure, 1973 (“The Code”).
The High Court went on to quash these. In an unprecedented move, it went on to add two incongruous conditions for subsequent notices and arrests. It provided that the notices under 160 may be issued but if actual presence is required, a 72-hour notice was a must. Secondly, it provided that if such persons were to be investigated, they will receive a show cause notice and will not be arrested for 10 days. Furthermore, it frowned on the practice of issuing 160 notices followed by arrests and considered it to be a misuse of the section. It held that “the investigation agency cannot use section 160 of the Cr.P.C as an oppressive measure against anyone.”
This order overlooks a Supreme Court judgement on the scope of sections 160, 161, and 162: Nandini Satpathy v. Dani (P.L.) And Anr. This post aims to highlight the holding from Nandini Satpathy on Sections 160-162 of the Code and point out that the Calcutta High Court order is per incuriam to the extent that an accused may be issued a notice under Sections 160, 161. And any arrests which may follow, if compliant with Sections 41 and 46 of The Code, are legal.
Scope of Sections 160, 161, and 162: Nandini Satpathy & the Accused/Witness
In Nandini Satpathy, the Supreme Court delineated the scope of Sections 160 and 161 of the Code. The question framed by the Court was the following:
“[W]hether the police have power under Sections 160 and 161 of the Cr. P.C. to question a person who, then was or, in the future may incarnate as, an accused person”
The Court answered in the affirmative while citing a Privy Council decision in Pakala Narayana Swami v. Emperor. The reasoning behind the order was the purported legislative intent behind the sections read with a plain interpretation of the words. “Free disclosure of words” and “protect persons from making such disclosures” were notable in the Privy Council decision in construing Sections 160 and 161. It held that the scope of 161 was broad enough to be issued to an accused.
In Mahabir Mandal v. State of Bihar, the Supreme Court affirmed that “any person” includes an accused under Section 160 of the Code. By necessary implication, it held, that an accused will be “acquainted with the facts” of the crime. Such understanding may or may not come out to be true but it doesn’t vitiate the application of Sections 160-161. Regarding the marginal note of Section 160 to the extent that it mentions “witness”, it was said that “the marginal note [merely] clears ambiguity but does not control meaning.”
As mentioned, in Pakala Narayana Swami, such an interpretation of 160-161 is backed by the purported legislative intent gathered from a plain reading of the sections. These sections are intended to serve as a guarantee for free disclosure of information and to protect the person making such disclosure from the supposed unreliability of such testimony. This protection is provided for in the form of a bar on its use as evidence in trial as given in Section 162 of the Code. This implies 2 things – (a) and accused may be “a witness” and “acquainted with the facts of the case”, and (b) such statements by virtue of 162 cannot be the basis of conviction of the person making them. Though arrest is covered by neither of the 2 propositions, there is no express or implied bar on it either. The decision to arrest is a prerogative of the investigating officer, who, given the circumstances, is in the best position to make this decision. There obviously are possibilities of misuse but this does not mean taking this power away from the IO.
The effect of calling an accused under 160 can lead to a legal arrest in law. This does not mean that such an exercise is an abuse of process. In the present case, the petitioners had argued that such notices were meant to ensure the presence of the concerned persons to take them into custody and deny them the opportunity to apply for anticipatory bail under Section 438 of the Code. The High Court agreed with the petitioners and set aside these notices and laid guidelines for subsequent notices to the same persons. It also noted that the practice of calling someone for arrest through a 160 notice “cannot be encouraged.”
On closer scrutiny, the argument of notices undermining the right to seek anticipatory bail holds little water, since it has long been held that the test for anticipatory bail is whether a genuine apprehension of arrest exists, and this may exist even before registration of an FIR in some cases. Thus, it is argued that in Sutapa Adhikari there was no denial of anticipatory bail rights because, as argued by petitioners, they feared arrests because of the prior conduct of the police. In fact, paragraph four of the order notes that the “apprehension of arrest” on the part of the petitioners was well-founded due to the prior conduct of the agency. Therefore, nothing prevented petitioners from availing anticipatory bail. In fact, there is nothing on record to show that they even applied for it despite this apprehension. This signals a voluntary waiver of that right and not abuse of process.
Scope & Use of 160: Where Sutapa Adhikari Gets it Wrong
It was submitted by the petitioners that in recent cases, namely CRR 3047 of 2022 and GR Case No. 1357 of 2022 arising out of Contai police station Case No. 265 of 2022, the investigating agency has been using this section to arrest innocent persons. In the present case, the petitioners had alleged that the family members and acquaintances of the accused in Case No. 46 of 2022 – Suvendu Adhikari, were being harassed via notices under section 160 of The Code as arrests were happening post appearances by such people.
The High Court set aside these notices while observing that such practice of calling someone not named in the FIR by a notice under section 160 of The Code and the IO, in the name of interrogation, implicating them as an accused and arresting them directly, amounts to abuse of Section 160. It is argued that these observations by the High Court are erroneous in law.
Looking at the text of Section 160 in line with Nandini Satpathy, it becomes clear that an accused can be called under 160 to record a statement under 161 of The Code. But by virtue of 162 and Article 20(3), read with Aghnoo Nagesia all such statements cannot be used as evidence. As per section 25 of the Indian Evidence Act, confessional statements to the police are not admissible in a trial as evidence. Thus, there are inbuilt safeguards for such arrests by having a limited evidentiary value of such statements. Such statements cannot be used as evidence, they may or may not be the basis of an arrest because there is no express bar on such an arrest. This does not violate any procedural rights of the accused. Moreover, the domain of investigation is the sole prerogative of the executive and cannot be interfered with as a routine practice by the Courts. So, the order of the Court which not only discourages Section 160 notices on erroneous premises but also invents the two preconditions before initiation of investigation and arrest, is not only bad in law but also lacks legal precedent.
So, then, what remains to be analysed is the larger concern underlying this High Court order. This concern is of wide discretionary powers of arrest vested with the investigating agencies. On the ground, there may be the potential to misuse Section 160 notices. For example, in the very first issuance of a notice to a ‘witness’, there is little apprehension of an arrest. So, it is unlikely that such a ‘witness’ to whom such notice is issued, will apply for anticipatory bail. This is a valid concern and can raise questions about a fair procedure. As a general principle, allowing Section 160 notices to accused persons can certainly lead to an arrest, and this power can be misused can be misused. But does it mean that the scope of Section 160 needs to be reconsidered or that Nandini Satpathy needs to be overturned?
Per Nandini Satpathy, Pakala Narayana Swami, and Mahabir Mandal, it is known that the purpose behind 160, 161 is two-fold – (a) free disclosure of information, and (b) protection of the persons making such disclosures. In line with these purposes, there is perhaps a need to look at Nandini Satpathy on the presence of a lawyer during the questioning of a witness/accused, i.e., at the pre-trial stages. The Supreme Court had held that the right to consult a lawyer includes the right to have the lawyer present during interrogation. But this does not entail that “the police must secure the services of a lawyer.”
In Nandini Satapathy, the court noted that “a lawyer’s presence is a constitutional claim in our country, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence. Article 20(3) and Article 22(1) may in a way be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined.” However, subsequent judgments, notably, Md. Ajmal Md. Amir Kasab v State of Maharashtra, Shri D.K. Basu, Ashok K. Johri v State Of West Bengal, and State Of U.P, Poolpandi Etc. Etc vs Superintendent, Central Excise, and State (N.C.T. Of Delhi) v Navjot Sandhu, it was held that the lawyer can be present during interrogation, but they will need to maintain a certain distance or a partition of glass will be there while interrogation as such is going on. Thus, the Indian position on the presence of a lawyer is that the lawyer should be allowed to be present during interrogation, but at a visual and not aural distance. Since Nandini Satapathy, subsequent case laws have curtailed the right of the accused to have their lawyer present and involved during the interrogation and other pretrial stages. Thus, there is a need to revisit the question and scope of the presence of a lawyer during the pretrial stages. Such may not be the panacea for allaying all concerns regarding the wide arrest powers of the police but it is a starting point. It can serve, at least, as a check on the procedure during an arrest or interrogation of a witness/accused under 160 while also reinforcing the protection against self-incrimination.
The Sutapa Adhikari order, speaks of violation of “natural justice” in arrests following a notice. While the presence of a lawyer in pretrial stages may or may not affirm “natural justice”, it may very well provide for some checks during arrests, and the procedure of interrogation and is also relevant for the right against self-incrimination. From, existing case law, it is clear that arresting via notices under Section 160 is a valid legal option. Undoubtedly, there is potential for misuse but there exist ways in law to check such misuse. But, what is clearly not a valid way to check such misuse is the invention of a new procedure, as the Court did in the current order.
Conclusion
The Calcutta High Court order on Section 160 of the Code is flawed and may prompt police to complain that it has made it more difficult for to investigate crime. The order also sets a dangerous precedent by inventing new procedures that are not supported by the law. It is per incuriam Nandini Satpathy, which is clear on the scope of “any person” under 160-161. The order also wrongly assumes that the accused has no right to avail anticipatory bail under section 438 of the Code. Concerns of wide discretionary powers of the police/investigating agency to arrest persons may perhaps be checked or at least held up to scrutiny by the involvement of a lawyer at pretrial stages. This would provide an additional safeguard against the misuse of Section 160 notices and would help to ensure that the accused’s statement is accurate and reliable. Clearly, it would not serve as a panacea for this issue of powers of arrest, but it is a starting point.
No comments:
Post a Comment