• Using Punjab Police against its political opponents like Kumar Vishvas, Alka Lamba and Tajinder Bagga shows the changing politics of AAP, which could redraw battle-lines
• State governments have been picking holes in the CrPC to transcend state boundaries and use police to settle political scores
• Bagga incident has renewed calls for amendments in law to restrain police from effecting arrests in other states without concurrence of local police

The arrest of the BJP spokesperson, Tajinder Pal Singh Bagga by Punjab Police in Delhi last Friday, which has kicked up an unseemly row over police powers, jurisdiction and alleged vendetta, exposes certain fault lines in our legal and political systems.

The episode led to a faceoff between policemen of Punjab, Delhi and Haryana, necessitating legal intervention. It started with the Punjab State Cyber Crime Wing at SAS Nagar having registered an FIR under Sections 153A, 505, 505 (2), 506 of the IPC against Bagga on April 1 last. The National Secretary of the Bhartiya Janata Yuva Morcha (BJYM) was booked following a complaint by a local AAP leader, Sunny Ahluwalia. The latter alleged that Bagga had made provocative statements, spread rumours and tried to create religious and communal enmity. Bagga was also accused of threatening Delhi CM, Arvind Kejriwal during a protest in Delhi on March 30. Video clips and statements of Bagga were also submitted to the Police.

Incidentally, the case against Bagga and his arrest bears an uncanny resemblance with that of the Gujarat MLA, Jignesh Mevani. While Bagga was booked on a complaint by a resident of SAS Nagar for his actions, tweets and videos in Delhi, including those against CM, Arvind Kejriwal, the latter has been booked following a complaint by a resident of Assam on his tweets against PM Modi in Gujarat. The similarity between the two does not end there; both are known to practice a maverick-brand of politics!

After Bagga refused to comply with repeated police notices, a Punjab Police party arrested him from his Delhi residence after a brief resistance. While he was being escorted back to SAS Nagar, his father filed a complaint with Delhi Police. The Delhi Police instantly registered a case of trespass, assault and kidnapping against the Punjab Police and sounded the Haryana Police to intercept the Punjab Police Party escorting Bagga to SAS Nagar. The Punjab Police party was stopped near Kurukshetra and taken to Thanesar Police Station. Delhi Police with warrants from a Delhi Court reached Thanesar in the afternoon. On the basis of the Warrants by Delhi Court, they took custody of Bagga and drove with him back to Delhi. An ADGP-rank officer of Punjab Police reached Thanesar Police Station to get the Punjab cops, held up there, back home, albeit empty-handed.

While there is mixed opinion on actions of Punjab Police against Bagga, the alacrity of Delhi and Haryana Police in his defense has raised eyebrows.

It has now been left to the Punjab & Haryana High Court to resolve multiple issues over Bagga’s arrest that had arisen. What is being contested, perhaps for the umpteenth time, is the issue of inter-state arrests and jurisdiction of state police as per the Code of Criminal Procedure (CrPC).

Interestingly, in Bagga’s case, the Punjab & Haryana High Court was already seized of the matter much before the arrest drama on May 6. Bagga had moved the HC against the FIR registered against him and pleaded for stay of further proceedings (arrest etc) till the final disposal of the petition. Justice Harinder Singh Sidhu had on April 7 observed that the offences listed in the FIR were all punishable with imprisonment less than seven years. He ordered that Punjab would be required to strictly adhere to the directions of the Supreme Court in a 2014 case (Arnesh Kumar Versus State of Bihar and another).

In the Arnesh Kumar case, the Supreme Court had expressed concern over unnecessary arrests by police officers and directed that the provisions of Section 41 CrPC be scrupulously enforced. In case the accused fails to comply with the terms of the notice, the police may arrest him subject to orders passed by a competent court. Regarding police officer arresting an accused without an order from a Magistrate and without a warrant, the Supreme Court wanted provisions of the Section 41 to be scrupulously enforced. “We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another”, the SC opined. All Chief Secretaries and Director Generals of Police of all States were asked to ensure its compliance.

On the face of it and going by the sequence of events in Bagga’s arrest, the Punjab Police, like many of their counterparts in other states, appear to have failed to understand and enforce the underlying spirit of the SC ruling in the Arnesh Kumar case.

This is not the first time that such issues with inter-state ramifications have surfaced. During the decade and a half of militancy in Punjab, such violations were a rule than an exception. More than once, the Punjab Police was in the dock. At the height of militancy, acting on a tip-off, a Punjab Police team had landed in Mumbai in November, 1992 and killed a wanted terrorist in what came to be known as the Antop Hill encounter. Since he was a well-known terrorist, the incident did not evoke a controversy. But the Punjab Police team was not so lucky the following year.

In 1993, a team of Punjab Police had swooped on a hideout in Tiljala in West Bengal and killed a couple wanted in terrorist crimes in Punjab, without intimating the local (W. Bengal) police. The killing stoked off a huge controversy and Supreme Court ordered a CBI probe into the killing, which led to five Punjab Police cops being convicted for life imprisonment. The same year another team of Punjab Police was accused of picking up one Gulshan Singh from a gurdwara in Delhi, the whereabouts of whom are still unknown. In yet another incident in 1994, one Karnail Singh was killed near Hawrah and following a protest by the then W. Bengal CM, Jyoti Basu, the then Punjab CM Beant Singh had to tender an apology.

Recent arrests of Mevani and Bagga have stirred a controversy because their “crime” falls in a different category, which at best led to criminal defamation cases being filed earlier. Registration of FIRs over tweets, statements and using police forces to effect arrests is a comparatively new phenomenon.

The Punjab Police party which arrested Bagga could also be hauled up for violating the Delhi High Court orders and guidelines issued in January, 2020 in a Habeas Corpus case. The Delhi HC bench of Justices S. Muralidhar and Vinod Goel had in August, 2018, in a matter of police from other states arresting people from the national capital without informing the local police constituted a two-member panel, comprising former Delhi High Court Judge, Justice SP Garg and former DGP (Investigation), Kanwaljeet Deol.

The Delhi High Court ordered implementation of the recommendations of the Committee. It held that such incidents of the police having transgressed procedure in cases involving two states is far from a one-off occurrence. Certain guidelines of the procedure of inter-state investigation or arrest by the police were also issued.

The procedure proposed was based, inter alia, on Sections 48, 77, 79 and 80 of the Code of Criminal Procedure (CrPC). In a case when the police officer decides to make an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. The Police Officer is required to move the Jurisdictional Magistrate to seek arrest/ search warrants under Section 78 and 79 CrPC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/ search warrant would defeat the purpose.

As per guidelines, the Police Officer must record reasons as to what were the compelling reasons to visit other State without getting arrest/ search warrants.

The Guidelines stated that, “Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. Further, the Officer after reaching his destination is required to inform the concerned police station of the purpose of his visit to seek assistance and co-operation. The concerned SHO should provide/ render all legal assistance to him. Entry to this effect must be made at the said police station. After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down u/s 100 CrPC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 CrPC.

The Guidelines state that, “The arrested person must be given an opportunity to consult his lawyer before he is taken out of State……Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of CrPC within 24 hours.”

According to guidelines, since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/ acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family member would be able to arrange legal assistance for him. Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted. In case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of the search, seizure, arrest or investigation before the event, this should be done soon after the search, seizure, arrest etc. has been conducted, as per guidelines.

Questions that arise are many: Was Bagga’s arrest necessary and that too without warrants from a Magistrate? Why were directions and guidelines issued by the SC and Delhi HC not followed?

Incidentally, after the fracas, the Punjab Police did get arrest warrants of Bagga issued by a Magistrate Court in SAS Nagar on May 7. In fact, this should have preceded the dispatch of the Punjab Police Party to Delhi for his arrest a day earlier. But by that time, all parties were wiser. Bagga’s lawyers moved Punjab & Haryana HC immediately and in a late night hearing, the HC stayed the arrest till May 10.

Arrest of Bagga and police summons to Kumar Vishvas and Alka Lamba before him are pointers to a new brand of politics at play by AAP. This is in sharp contrast to Arvind Kejriwal as people knew him. Way back in 2016, during a visit to Bikener in Rajasthan, when a youth threw ink on him, his response was, “Hmmm…God bless them”. He was later quoted to say that he had no ill feelings towards those who were behind it. People wonder as to what has changed since then?

By taking on the BJP aggressively, Arvind Kejriwal is playing a gamble of sorts and perhaps has the state assembly polls in Himachal Pradesh, Gujarat and Haryana in mind. This could even make its opponents forge informal understandings to stop its onward march.

But, recent actions appear to have backfired, at least for now. Kumar Vishvas got reprieve from the HC. Alka Lamba’s case got highly politicized and when she appeared at a Ropar Police Station, she was accompanied by senior Punjab Congress leaders. After facing embarrassment in the three cases, the Punjab Government has been forced to revise its strategy. The Punjab CM Office asked for a detailed report on the incidents and DGP, VK Bhawra told his officers not to proceed with arrests of accused in other states without taking legal opinion.

Besides, within the party, there are sharp divisions on such an approach. While some are gung-ho and endorse the offensive-defence approach, others feel that this was denting the image of the Government and CM Bhagwant Mann. Opposition is already alleging that Mann was a puppet, with Kejriwal and his team calling the shots. They feel that the government, which faces a Herculean task, should not waste its time and energy in settling scores. Such controversies, they feel, are allowing the Opposition parties, which is in tatters, to make their presence felt in the media.

Given the state of murky politics in the Country, such incidents have underlined the need for wide-ranging reforms in the legal system. Congress leader and former Union Home Minister, P. Chidambaram has warned of Mevani and Bagga incidents resulting in “ultimate breakdown” of federalism. He has been quoted asking for the police autonomy to stop at border of another state and the necessity of consent before venturing into its jurisdiction. Eminent lawyer, Harish Salve has emphasized the need for a “civil right law” to make false arrest a punishable offence.

Whether or not a new law or amendments in existing law come about, the recent arrests and cases have enlivened the Punjab political scene much earlier than expected. The Government has generated enough controversies in the first 50 days to keep it in news in the coming months.