Tajinder Bagga Row: How Punjab Police Violated Guidelines on Inter-State Arrest

Not only did they fail to inform Delhi Police prior to coming to Delhi, Bagga wasn't allowed to consult his lawyer.

Punjab Police arrested Delhi BJP spokesperson Tajinder Pal Singh Bagga from his residence in Delhi in connection with a case registered against him in Mohali last month.

(Photo: Altered by The Quint)

The row over the Punjab Police's attempt to arrest BJP leader Tajinder Pal Singh Bagga on Friday, 6 May, continues to boil, with the BJP claiming it as vendetta politics while the Aam Aadmi Party (which is in government in Punjab) insists the arrest was done correctly in connection with a criminal case against Bagga.

The Punjab and Haryana High Court will be hearing both sides of the fracas on Tuesday, having decided to take up Bagga's petition to quash the FIR against him along with the Punjab Government's petition against the detention of the state police officers who had gone to arrest the BJP leader from Delhi.

When it comes to the quashing petition, there are questions to be raised about the FIR against Bagga under which he was arrested. It was registered on 1 April under Sections 153A (promoting enmity between different communities), 505 (public mischief) and 506 (criminal intimidation).

The Punjab Police claim that he had made provocative statements and tried to inflame tensions in the state – but concerns have been raised since the alleged statements in question are social media posts against Delhi Chief Minister Arvind Kejriwal.

The merits of the FIR will be considered in the quashing petition filed by Bagga, but it is to be noted that the court's assessment of the FIR is not per se relevant to the question of whether the Punjab Police followed procedure when arresting the BJP leader from his residence in Janakpuri, Delhi.

To answer that question, it has to be seen whether the Punjab Police followed general law on arrests, and then more specifically, on making inter-state arrests.

Was an Arrest Merited at All in This Case?

The maximum punishment for the offences in the FIR against Bagga is three years' imprisonment.

As this is under seven years, the Code of Criminal Procedure (CrPC) prescribes that an arrest should only be made when absolutely necessary, in case the accused is likely to abscond, or threaten witnesses or tamper with evidence – as was reiterated in the Supreme Court's Arnesh Kumar judgment in 2014.

If not, they should be sent notices under Section 41A of the CrPC to cooperate with the investigation, and only if they fail to do so, should an arrest be made.

The Punjab Police claim that this procedure was complied with: they reportedly sent five notices to Bagga asking him to join the investigation.

"The notices dated April 9, 11, 15, 22 and 28 were duly served upon," a statement by the Punjab Police (as reported in The Tribune) said. "Despite that, the accused deliberately did not join the investigation.”

If Bagga had not therefore complied with these notices, the Punjab Police were within their rights to arrest him to get him to cooperate with the investigation.

But Did Punjab Police Follow Procedure to Make the Arrest?

The CrPC does not expressly list any provisions on inter-state arrests, especially for situations where a person is being arrested without a warrant.

When a person is being arrested in pursuance of a warrant, Section 79 of the CrPC provides the procedure to be followed if the arrest is happening in a different jurisdiction from where the warrant was issued.

This procedure, which involves getting an endorsement from the executive magistrate or police officer in charge of the police station in whose jurisdiction the arrest is made, would apply to inter-state arrests as well.

However, in Bagga's case, the arrest was made without a warrant, and thus there is no explicit provision in the Code of Criminal Procedure which describes how an inter-state arrest is to be made. There is no other law passed by Parliament that applies across the country when it comes to inter-state arrests either.

The Punjab Police may try to hide behind this lack of a legal provision to say they were not obliged to follow any specific procedure to arrest Bagga from Delhi, beyond informing the local police of the arrest.

In a statement to The Tribune, Mohali DSP (City-1) Sukhnaaz Singh said:

“A police team was sent from Mohali to Delhi last night. A team arrested them today morning and simultaneously, another team reached the police station concerned in Delhi to inform local cops. The entire process has been video-recorded. Although Bagga resisted arrest, no force was used against him or his father.”

However, if this was the only procedure followed by the Punjab Police, then they could find themselves in the dock, legally speaking.

In 2019, in Sandeep Kumar vs State, the Delhi High Court was hearing a case where a man and his wife were arrested by Uttar Pradesh Police from JNU in Delhi, based on a complaint by the woman's family.

The man, Sandeep Kumar, was arrested and was not produced before a magistrate, while the woman, Nisha, was forcibly taken by the police to her family, even though she was 21 and insisted she was staying with her husband of her own free will.

The high court appointed a special committee comprised of former Delhi High Court judge Justice SP Garg, and IPS officer Kanwaljeet Deol, a former DG (Investigations) with the NHRC, to assess the actions of the police forces involved.

The committee looked into the rules for arrests under the CrPC, an MHA office memorandum from 2012 on inter-state arrests and relevant police rules and manuals, and found that there had been a grave breach of procedure in the case.

Based on all these pre-existing rules, they suggested a set of 30 guidelines to be followed in cases of inter-state arrests, which the Delhi High Court accepted and directed to be implemented by the police forces in Delhi and Uttar Pradesh.

The Punjab Police might try to argue that these guidelines don't apply to them since there was no direction from the Delhi High Court to implement them in Punjab, but this is a questionable defence since the committee framed the guidelines based on existing rules and legislation.

Senior advocate Satish Tamta, who specialises in criminal law, contends that the Delhi High Court's guidelines do have to be followed by police forces effecting inter-state arrests anywhere in the country – or at the very least when making arrests of any person from Delhi.

The guidelines require a police force making an arrest in a different state to take the following steps:

• The police officer who seeks to make the arrest must first seek prior permission of their higher/superior officers in writing to go out of their own state.

• The police officer must state the facts and record reasons in writing why an arrest is necessary. Unless there is a risk that the accused would disappear or destroy evidence, they should obtain a warrant for the accused's arrest.

• Before travelling to 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."

• After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and co-operation.

• The arrested person must be given an opportunity to consult his lawyer before he is taken out of state.

• While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the state; articles if any, recovered. The victim's name be also indicated.

It is not essential for the police from the visiting state to obtain transit remand from a local magistrate where the arrest happens, if it will be possible for them to produce the arrested person before a magistrate within 24 hours of the arrest. Given distances between Delhi and Mohali, this would have been possible, and so the Punjab Police was not required to get a transit remand order.

However, going by their own version of events, it is clear that the Punjab Police failed to comply with several key guidelines, as they only sought to inform the Delhi Police they were arresting Bagga at the time they were making the arrest.

Furthermore, they didn't give Bagga a chance to consult his lawyer before he was taken out of the state.

Sources in the Punjab Police have also suggested in comments to The Tribune that the police force failed to follow procedure when it came to Bagga's arrest.

Since the arrest had been without following due procedure, Bagga would have been able to get the Punjab and Haryana High Court or the Delhi High Court to order his release from custody, and maybe even obtain compensation, following the Sandeep Kumar case.

What is less clear however, is whether a failure to comply with the guidelines on inter-state arrest could be grounds for an FIR for kidnapping, as registered by the Delhi Police.

The Delhi Police themselves have been accused of not following the guidelines fully at all times, for instance when arresting climate activist Disha Ravi from Bengaluru in the dubious farmers protest toolkit case.

It will be interesting to see if the Punjab and Haryana High Court takes a view on this aspect of the whole affair when it considers the habeas corpus petition filed by the Punjab Government on behalf of its officers, who were detained by the Haryana Police pursuant to the Delhi Police FIR.