Various scam cases registered in Jhakhand in recent days are feared to fall flat in future as the investigating officers are either not taking proper legal route leaving escape routes or gathering foolproof evidence to nail the real culprits, feel legal experts.
A legal expert pointed out that the recent order of the Jharkhand High Court quashing the arrest warrant issued against over half a dozen officials of the agriculture department, besides former Agriculture Minister Nalin Soren, in seed scam case, has virtually exposed that the police officers are oblivious of the latest changes in the criminal law, particularly Section 41 of the CrPC.
“The oversight of law has not only given a blow to the investigation bringing cheers to the face of real accused, but also leads to piling up of unnecessary litigations,” he said.
The court, while recently quashing the warrant, said that it had not been issued in consonance with the provision as contained in Section 73 of the CrPC.
Under the amended law, there was no need to seek the arrest warrant from the court until the accused was cooperating with the police in carrying out the investigation into the case
The Section 73 confers a power upon the Magistrate to issue warrant for arrest of three classes of person, namely, escaped convict, a proclaimed offender and a person who is accused of a non-bailable offence and is evading arrest.
The officers who were co-accused in the seed scam, had contended that since they were Government employees and attending office, they were meant to be available to extend cooperation to the police and investigation agencies and as such, the arrest warrant against him be quashed forthwith.
The amendment in Section 41 in 2008 which was enforced on December 31, 2010 has put fetters on the power of police to arrest the accused persons involved in offences punishable with imprisonment up to seven years. As per the amendment, the police officer is empowered to arrest a person in all cases of cognizable offences only when it is committed in his presence, in all other situations, if the offence is punishable with imprisonment less than seven years, the amendment requires the police officer to record reasons in writing prior to effecting arrest.
If there is no tangible reason, then the police officer would send a notice asking the accused person to appear before it for investigation. If he/she doesn’t appear, it will be lawful for the police officer to make an arrest.
Ironically, in the seed scam case, the warrant of arrest was sought to be issued on the ground that only upon arrest of the accused person something could be divulged in the matter and that the accused person in that event could be forced to surrender before the court and is also there that sufficient materials have been collected against the petitioner but none of the grounds mentioned in the requisition comes within the purview as contained in Section 73 of the Code.
Incidentally, the three suspects in the 2012 Rajya Sabha horse trading case — RK Agrawal, Pawan Dhoot and Sunil Maheshwari — today moved the High Court invoking the amended version of Section 41 to appear before the CBI. They have challenged the summons issued under Section 160 of CrPC.
A CBI official said that they have invoked Section 41 to avoid their possible arrest as they can be taken under custody if they are summoned under Section 160.
The CBI is already in the dock for not lodging the FIR under non-bailable sections of Prevention of Corruption Act relating to seizure of Rs 2.15 crore cash from a van linked to Agrawal.
Ironically, the shoddy investigation in the pollution board scam involving former Chief Minister Madhu Koda and his aide Vinod Sinha, among others had already failed the scrutiny of the high court, which recently quashed the order by which the vigilance court framed charges against them. Former DGP GS Rath admitted the problem. “They (police) are more interested in making arrests instead of gathering evidence,” he said.
“The police officers need to be updated to fulfill the legal requirements. There could be two possibilities — either they are not updated with the changes in law or do so knowingly. In both the cases, they give benefit to the accused finally,” he pointed out, and added the CID could begin advance training school for the regular orientation of the investigating officers.
Former Advocate General Anil Sinha said that the police have to make arrests in rare cases only. “They can seek warrant only after they file the chargesheet. The lower courts are equally responsible for violation of law when they mechanically issue the arrest warrant at the insistence of the IOs,” he added.