The Hindu : Arrest, a matter of discretion

Online edition of India's National Newspaper
Sunday, Jul 07, 2002

Southern States

Southern States - Tamil Nadu

Arrest, a matter of discretion

By K.T. Sangameswaran

CHENNAI July 6. The State Government is taking its own time to finalise the course of action, in consultation with legal experts, in the case against the MDMK leader, Vaiko, for his pro-LTTE outbursts. It remains to be seen how it will implement the Prevention of Terrorism Act, 2002, under which a case has been registered against him. The Government has to decide whether Mr. Vaiko should be arrested or not.

Though the Government earlier made clear its intention that it would arrest Mr.Vaiko under the POTA, a cross-section of lawyers says that as in other criminal cases, it is the discretion of the investigating officer to arrest a person or not. Nowhere in the Act has it been mentioned that a person `shall' be arrested for an offence under the special legislation. Depending on the circumstances of the case, the investigating officer can decide whether a person should be arrested or not, says K.S. Dinakaran, a criminal lawyer.

While enacting the law, Supreme Court guidelines on arrests were also included— whenever any person is arrested, he should be informed of his right to consult a lawyer as soon as he is brought to a police station and information on the arrest communicated by the police to a relative, among others.

That the arrest is not mandatory and is a matter of discretion of the investigating officer is evident in the case of the bomb blast at the RSS headquarters at Chetpet here. Though one of the accused, Palani Baba (since deceased), was available, he was not arrested in the case, registered for an offence under the now-defunct Terrorism and Disruptive Activities (Prevention) Act, explains S. Doraisamy, another lawyer.

The case against Mr.Vaiko under the POTA (Section 21 (2) (3) is for an alleged offence of `support given to a terrorist organisation'. He has not been charged with serious offences such as funding terrorist organisations or instigating violence. Stringent provisions have been incorporated in the Act on grant of bail. It lays down that ``notwithstanding anything contained in the code (Cr.P.C.), no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless the court gives the public prosecutor an opportunity of being heard''. If the prosecution opposes the bail petition, bail should not be granted until the court is satisfied that there are grounds for believing that the person concerned is not guilty of such offence. A provision in the Act is that the restrictions on granting bail are in addition to the curbs under the Cr.P.C. or any other law for the time being in force on grant of bail.

More stringent is the provision that no anticipatory bail will be granted to any person accused of having committed an offence under the Act. ``Nothing in Section 438 of Cr.P.C. (Direction for grant of bail to a person apprehending arrest) shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act''.

Lawyers point out that special courts have to be set up for trying offences booked under the special law, as the Act stipulates that every offence punishable under any of its provisions be tried only by a special court. The Government should constitute one or more courts by notification, and also appoint public prosecutors to handle the cases. This process is likely to consume time, it is pointed out.

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