If a confession before a police officer is inadmissible under Section 25 of the Evidence Act, what is the value of a claim before a court that a person accused of a white collar crime is not cooperating with the investigating agency while hearing bail or anticipatory bail pleas? How often would agencies state that the alleged offender is baring his heart and soul? Isn't it a predictable line usually adopted by the prosecution that the accused is being tight lipped or evasive in order to make out a case for custodial interrogation? Not-participation in the investigation is, of course, a different matter, and can be proved by furnishing copies of summons and records of the absence of the accused. Isn't non-cooperation a subjective matter?
Can subjective submissions be allowed to scuttle fundamental rights? Article 20(3) of the Constitution that guarantees a citizen the fundamental right to not be compelled to be a witness against himself is not a dead letter. Neither is the cardinal right to life and personal liberty, "except according to procedure established by law" under Article 21. These two inalienable guaranteed constitutional rights, when read with Section 438(1)(iv) of the Code of Criminal Procedure (CrPC) which factors in "accusations" made with "the object of injuring or humiliating" a person by "having him so arrested" should leave no room for police custody of an alleged offender due to vendetta. A vindictive streak in prosecution is not just a convenient political punchline, it even found expression in the Law Commission's 41st Report.
For those accused of an offence for the first time, their past is a mitigating factor. This isn't a favour to be granted but is a ground for the grant of anticipatory bail under Section 438(1)(ii) of the CrPC. The sub-section harps on "the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognisable offence."
A distinction must be made between white collar offenders and hardened criminals. On the ground, there is no denying the fact that terrorists, murderers and rapists, may, under intense custodial interrogation, reveal information about crucial evidence hidden or even provide clues that could help the investigators prevent further crimes, especially, if other conspirators are at large.
There have been conflicting decisions of the Supreme Court. In CBI Vs Anil Sharma, the court, in 1997, leaned in favour of custodial interrogation. “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the code. In a case like this, effective interrogation of a suspect is of tremendous advantage in disinterring useful information and material which would have been concealed. Success in such interrogation would be elusive if the suspected person knows that he is well protected and insulated by a pre-arrest bail. Very often interrogation in such a condition would reduce it to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would not conduct themselves as offenders.”Although this verdict was in a corruption case, in my opinion, it is more applicable in heinous crimes.
In a more recent judgment, the Supreme Court in a 2018 judgment in Dataram Singh Vs State of Uttar Pradesh, opened with these words: “A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences.” The Apex Court goes on to lament that another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception.
Unfortunately, some of these basic principles appear to have been lost sight of with the result
that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."
The lynch mob mentality of sections of the media who display neither a semblance, nor even a
pretence of neutrality, must not wittingly or unwittingly make agencies play to the gallery. The Supreme Court in Arnesh Kumar Vs State of Bihar pertinently observed that “arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the CrPC. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired results. The Court also noted "the failure of the Magistracy to check it.”
It would be unfair to argue that courts and agencies must tread cautiously in such matters only in high profile cases. The thousands of economically disadvantaged citizens who languish for extended periods of both police custody and judicial remand, with a good number who may well be innocent, also need a voice. They, of course, bring no TRPs.
That ‘law must take its course’ has become a cliche. But just what that course is, remains a moot point.
(The writer is an advocate at the Madras high court, columnist & author)