Justice Markandey Katju
It is reported in the media that the 5 JNU students against whom there are sedition charges in connection with the incidents of 9th February have returned to JNU. The question is whether the police should arrest them ? I am of the opinion that they should not, because an interrogation can often be done without arrest.
It may be mentioned that arrest is not a must in every case where an F.I.R. of a cognizable offence is registered with the police. This is obvious from section 157 (1) Criminal Procedure Code. which reads :
” 157. Procedure for investigation
(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; “
The use of the words “and, if necessary ” in the above provision clearly indicates that it is not incumbent on the police to arrest in every case, rather it is discretionary.
In Joginder Kumar vs. State of U. P. A.I.R. 1994 S.C. 1349 ( see online ) the Supreme Court observed :
” No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. “
Thus the Supreme Court has held that arrest is not a must in every case. In the same decision the Supreme Court has noted that the National Police Commission in its Third Report has observed that 60% arrests in India are unnecessary or unjustified, and that arrests are a major source of corruption in the police.
In my opinion arrest is unnecessary in this case. If the police wish to interrogate these students they can ask the VC or Registrar of JNU to arrange for a room or hall in a building in the JNU campus where the police can come and interrogate the students without arresting them
Justice Katju is a former Supreme Court Judge and former chairman of Press Council of India