1.Arrest is not always a must, says Supreme Court
Bench says provision in the law does not mean that govt. can use power indiscriminately to crush personal liberty
The Supreme Court has held that merely because law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.
“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made,” a Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy said.
A distinction must be made between the existence of the power to arrest and the justification for exercise of it, it noted.
“If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused,” the court observed in its recent order.
The order was passed in a plea for anticipatory bail filed by businessman Siddharth, represented by senior advocate Pramod Kumar Dubey and advocates Ravi Sharma and Rahul Shyam Bhandari. The Allahabad High Court had rejected his bail application in July.
The case concerns an FIR registered against him for allegedly entering into a conspiracy and criminal breach of trust involving former ministers and high-ranking officials in relation to a project initiated by the Uttar Pradesh government in 2007 to build parks and museums, including the Ambedkar Samajik Parivartan Asthal, Kashiram Smarak Asthal Gautambudh Nagar Upvan Echo Park and Noida Ambedkar Park. The FIR alleges a loss of ₹ 14,000 crore to the public exchequer.
Mr. Dubey argued that his client had joined the seven-year-old investigation. There was no need for his custodial interrogation. There was no apprehension that he would abscond or tamper with evidence. Mr. Dubey said Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make arrest of the accused mandatory at the time of filing of the charge sheet. He argued that the word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.
Agreeing with the senior lawyer, the Supreme Court clarified that “the word ‘custody’ appearing in Section 170 does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the charge sheet”.
“The trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the charge sheet on record in view of the provisions of Section 170 of the CrPC. We consider such a course misplaced and contrary to the very intent of Section 170 of the CrPC,” the court laid down the law.
Section 170 in The Code Of Criminal Procedure, 1973
170. Cases to be sent to Magistrate, when evidence is sufficient.
- If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
2. When the officer in charge of a police station forward an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the cage as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
3. If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.
4. The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.
2.Elopements most prosecuted under child marriage law: study
But forced weddings often go unpunished in the country
Legal proceedings against child marriages are commonly undertaken against elopements whereas forced child marriages often go unpunished, finds a new study.
The report — “Child Marriage Prosecutions in India” — brought out by Partners for Law in Development (PLD), a Delhi-based legal resource group, analysed 83 high court and district court verdicts in cases relating to child marriage from 2008 and 2017.
It selected for analysis judgments and orders in which child marriage was specifically mentioned. These included cases filed under the Prohibition of Child Marriages Act, 2006, as well as legal action initiated under other laws in relation to child marriage such as Protection of Children from Sexual Offences Act (POCSO), 2012, and the Indian Penal Code (IPC).
The study found that legal prosecution of child marriages was twice as much against elopement or self-arranged marriages by girls with such cases accounting for 65% ( 54 out of a total 83 cases) of the total cases studied. Only 30% of the cases were those of arranged child marriages, and a mere 5% were forced child marriages (such as those that involved kidnapping, enticement or forcible marriage by parents).
An analysis of who initiated the legal proceedings shows that it was primarily the parents of girls who approached the legal system with a complaint. A total of 56 of the 83 cases, or 67.4%, were initiated by parents or relatives. These included cases where parents sought custody of their daughter who had eloped or to prosecute the husband.
Only 7% of the cases were initiated by a child marriage prohibition officer — the State functionary designated for implementing the law. Another 7% of the cases were filed by a third party, including an NGO, or suo moto action by the court.
Girls accessed the law on their own the least, with only 3.5% of the cases filed to seek the nullification of their arranged marriage or to initiate criminal legal action against their parents for arranging an underage marriage.
Further, the punishment for elopement versus forced and arranged child marriages were hugely disproportionate. The former could invite a punishment of 10 years to life imprisonment if convicted for rape under the IPC or a jail of 20 years to a maximum punishment of death under the POCSO Act, whereas the latter under the PCMA comes with no minimum sentence and a maximum sentence of imprisonment for two years and/or a fine. The study terms this “weaponisation of the law to settle family dishonour”.
That the law is tilted against older adolescents is also borne out by national crime data. In 2019, 525 cases were registered under the PCMA, compared with 6,590 children who were “deemed” to have been kidnapped on account of an elopement or love relationship and 12,724 cases of children who were kidnapped for the purpose of marriage.
“The unintended harm of the law needs to be corrected. Law reform in this area must aim to shield the young in self-arranged marriages,” says Madhu Mehra, the lead author of the study and Head, Research and Training, at PLD.
3.‘Both Trump and Biden administrations responsible for Afghan situation’
It was an extremely hasty withdrawal, and the move to pull out 16,000 contractors, all at once, literally pulled the rug out from under the Afghans, says Lisa Curtis
A concerted international commitment is necessary to prevent a humanitarian crisis in Afghanistan, saysLisa Curtis, former South and Central Asia Director of the U.S. National Security Council. Ms. Curtis, who is currently Director of the Indo-Pacific Security Program at the Center for New American Security, discusses what led to the current situation with the Taliban, the U.S.’ counterterrorism interests, and the future of U.S.-Pakistan ties. Excerpts from the interview:
I wanted to talk to you about Afghanistan. Very broadly, what went wrong? Could anybody have foreseen that the Afghan security forces would not really fight back?
I think there are several factors that have contributed to the disaster that we’re seeing today. And I think both the Trump and the Biden administrations bear responsibility for the way things are playing out. First, there was a very weak agreement that was negotiated with the Taliban during the Trump administration. It undermined the legitimacy of the government, by being weighed very heavily toward the Taliban. The U.S. forced [Afghan President Ashraf] Ghani to release 5,000 Taliban prisoners, before the Taliban had even really committed to a genuine peace process. So, I think that contributed to undermining the legitimacy of President Ghani, as well as the U.S. negotiator talking about an interim government, of which Ghani would not be a part. So, I think that fuelled the political divisions that were already there among the Afghan political elite. The second factor is the way in which the Biden administration withdrew. It was an extremely hasty withdrawal, and the fact that they thought necessary to withdraw 16,000 contractors, all at once, it literally was pulling the rug out from under the Afghans.
So, I think that there are a lot of things that have contributed. Not to mention the Taliban safe haven in Pakistan all these years. No U.S. administration — going back four administrations — was ever able to do anything about that safe haven. So, that’s certainly contributed to the Taliban’s ability to make these rapid military gains.
So there’s a combination of factors that have led us to this point. And I think what is important now is that we relocate as many Afghans as possible, resettle them in the U.S. These are people who have helped us, who supported the mission in Afghanistan, we have a moral responsibility to take care of them. Second, we need to prevent a humanitarian disaster. This will require a concerted international commitment to making sure that the people of Afghanistan are fed, that they find places to stay. There’s a lot of IDPs, internally displaced people, so that has to be dealt with. And lastly, I don’t think that the international community should rush to recognise the Taliban, any diplomatic recognition should be conditioned on human rights, respect for human rights, women’s rights in particular, and counterterrorism. And until we see action, not just words, but action on these issues, they certainly don’t deserve international recognition.
The Trump administration was and is being criticised for, by and large, leaving out the Afghan government from its negotiations for a settlement in Afghanistan. It sounds like based on what you’re saying, there were differing voices within the Trump administration. Why did they end up cutting out the Afghan government from those talks and is what we’re seeing today a consequences of that?
Well, the decision to hold direct U.S.-Taliban talks and not insist to the Taliban that the Afghan government be there, which is what the U.S. was doing in previous years (the Taliban did not want the Afghan government at the table, said they were illegitimate) — and the U.S. had respected that for many, many years — the decision was made in 2018 by the Trump administration to allow the U.S. to engage directly with the Taliban. The U.S. felt that its hands would forever be tied and it would not be able to reach any kind of political accommodation, without being able to engage directly with the Taliban. The idea was always that eventually the Afghan government would be brought into those talks. And I think there also was an expectation that the U.S. would represent Afghan interests. But unfortunately this is not what happened. What we saw was a consistent undermining of the Afghan government. It was easier to extract concessions from the Afghan government and give concessions to the Taliban. Unfortunately, there was not a balanced handling of that process, it wasn’t a ‘peace process’. We didn’t get the Taliban actually breaking from al-Qaeda. The only thing the U.S. got out of the Doha Agreement was the fact that Taliban did not shoot at U.S. forces as they were departing the country. So it really should be [called] the Doha Withdrawal Agreement, not the Peace Agreement.
Officials in the Biden administration have said alternatives to the way in which the exit was actually conducted would have come with their own human costs borne largely in these counterfactual situations by American soldiers and their families. What would you have suggested, in terms of an exit?
I personally think that the U.S. could have kept a limited presence. There are some 3,500 troops when Biden took office in January, along with the 7,000 to 8,000 NATO troops. And I think that there are ways to protect those forces. When I engaged with senior military leadership before the decision was made to go to zero, they had assured me that there were capabilities, there were ways to protect U.S. forces, and also to respond. It’s not as if the U.S. were sitting ducks — we had ways to respond to the Taliban. So, that would not have been a solution that would defeat the Taliban, it would have largely been a holding position just a way for the U.S. to continue to protect its counterterrorism interests, and give the government, an opportunity to perhaps negotiate a better deal with the Taliban… I think the thinking behind keeping a small CT (counterterrorism) presence there, while not solving the problem completely, it would have at least protected fundamental U.S. national, counterterrorism interests.
Speaking of safe havens for terrorists, what’s unfolding in Afghanistan is a gift of sorts to Pakistan, and PM Imran Khan has not hidden his appreciation for the turn of events. How do you think this is going to impact America’s relationship with Pakistan?
Like I said earlier, it’s a fundamental failure of U.S. policy that across four administrations, we were not able to deal with the Taliban sanctuary inside Pakistan. The Trump administration had cut security assistance to Pakistan… at least we didn’t have U.S. taxpayer money funding a military that was supporting our enemies. I don’t foresee any reinvigoration of the relationship or any great efforts made to try to re-establish an alliance with Pakistan. I don’t see the relationship plummeting, either. I think it will just probably remain rather stagnant over next several years.