Manish Sisodia Sent To CBI Custody For Not Giving 'Satisfactory Answers': What Have Courts Said On Right Against Self Incrimination & Power To Arrest?

A Court on Monday remanded Aam Aadmi Party leader and Delhi Deputy Chief Minister Manish Sisodia to CBI custody for five days in the Delhi liquor policy scam case. Sisodia’s legal team, while opposing CBI’s application seeking custody, laid emphasis on the alleged violation of Section 41 and Section 41-A CrPC.

It was also argued that he cannot be remanded to CBI custody for the purposes of recording his confessional statements. “Someone is not willing to say something you want to hear, is no ground for remand,” said Senior Advocate Dayan Krishnan before the court of Special Judge M.K. Nagpal.

However, the court, while acceding to the request of CBI, sent Sisodia to five days custody of the central agency. Additional Sessions Judge Nagpal observed: “It is true that he cannot be expected to make self incriminating statements, but the interests of justice and of a fair investigation require that he should come up with some legitimate answers to the questions which are being put to him by the IO.”

Section 41, 41-A CrPC

Section 41 gives the police the power to arrest a person in a case of cognizable offence without an order of the magistrate. Section 41-A CrPC on other hand states that the police officer, in the cases where arrest of the accused is not required, shall issue a notice directing that person to appear before him. While it is the duty of the person to comply with the terms of the notice, the law also states that “where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested”.

CBI on Monday told the Special Court that Sisodia was made to join investigation on the basis of Section 41A CrPC notices on two occasions but the arrest became necessary as “he was not cooperating in investigation and did not disclose the true facts related to the above conspiracy. The CBI also accused him of giving “evasive replies” to the questions put to him.

In Arnesh Kumar Vs. State of Bihar and another, the Supreme Court in 2014 said that police officers must be able to justify the reasons for exercising the power to arrest in cases involving offences punishable for seven years or less. On Magistrate's power to authorise detention, the apex court said that “detention is authorised in a routine, casual and cavalier manner.”

“If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused,” the Supreme Court said in the ruling

The court in Arnesh Kumar also said that authorising detention without recording reasons will make the judicial Magistrate "liable for departmental action by the appropriate High Court."

Arnesh Kumar judgement holds the field as far as law regarding the police’s power of arrest is concerned. It was also cited by Sisodia’s lawyers to oppose his custody.

In Satender Kumar Antil versus Central Bureau Of Investigation & Anr, the Supreme Court last year said it expects the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A.

While emphasising on the police officer’s duty to record the reasons for arrest, the court said consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offence.

“Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail,” the apex court held in Antil’s case.

Senior Advocate Abhishek Manu Singhvi, representing Sisodia, on Tuesday before the Supreme Court cited Arnesh Kumar and Satender Kumar Antil. "If you have called him twice in eight months, where is the need of arrest? The power of arrest doesn't mean compulsion to arrest," said Singhvi.

Referring to the remand order, Singhvi said: "Does arrest and co-operation mean that I must incriminate myself. This is a ground unknown to law. When we read criminal law,  we were never told that unless I agree to what the investigator is saying ... here it is recorded that I am not answering question fully. Suppose, in a hypothetical case, I say 'sorry', can you have a ground of arrest saying that he is not saying 'yes'".

However, the Supreme Court refused to entertain the petition at this stage under Article 32 of the Constitution. Chief Justice Of India DY Chandrachud said Sisodia can approach the Delhi High Court.

Supreme Court in Mohd. Zubair v. State (NCT of Delhi) has said that when the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. It reiterated that the guidelines in Arnesh Kumar must be followed.

Cooperation In Investigation v. Right Against Self Incrimination

While sending Sisodia to CBI's custody, the Special Court on Monday said Supreme Court’s guidelines in Arnesh Kumar or the provisions under Section 41, 41-A CrPC do not altogether prohibit the investigating agency from arresting the accused. It noted that Sisodia has “failed to legitimately explain the incriminating evidence which has allegedly surfaced against him in the investigation conducted so far”.

The question regarding the interplay of refusal to answer and arrest came before the Bombay High Court recently in Chanda Deepak Kochhar versus Central Bureau Of Investigation. In the interim order while ordering release of Chanda Kochhar and her husband Deepak Kochhar, the high court said the allegation that the accused “have not co-operated and not given true and correct disclosure” cannot be a ground to arrest.

It further said that “not disclosing true and correct facts” cannot be a reason as the right against self incrimination is provided for in Article 20(3) of the Constitution.

“It is a well settled position in view of the Constitution Bench decision in Selvi vs. State of Karnataka. Article 20(3) is an essential safeguard in criminal cases and is meant to be a vital safeguard against torture and other coercive methods used by investigating agencies. Hence, merely because an accused does not confess, it cannot be said that the accused have not co-operated with the investigation,” said the court.

In Selvi, the Supreme Court has said that Article 20(3) has an exalted status in the Constitution. Referring to various provisions pertaining to the citizens' duty and police's power to investigate, the court said, "While the overall intent of these provisions is to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard"

The Special Court, while remanding Sisodia to CBI custody, relied on State Vs. Anil Sharma. In the case from Himachal Pradesh, the Supreme Court had set aside the order granting pre-arrest bail to a former minister.

“We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconded with a favorable order under Section 438 if the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disintering many useful informations and also materials which would have been concealed,” the apex court said in the 1997 ruling.