Fri. Nov 18th, 2022

The Supreme Court on Friday granted bail to comedian Munawar Faruqui in a case registered by the Madhya Pradesh police for hurting religious sentiments.
In a brief hearing, a three-judge Bench led by Justice Rohinton Fali Nariman also stayed a production warrant issued by the Uttar Pradesh government against Mr. Faruqui in a separate case based on the same facts.
Also read: Taking offence has been elevated to status of a much-loved indoor sport, Kunal Kamra tells Supreme Court
Justice Nariman said the allegations against Mr. Faruqui were vague. He noted that the police had not complied with the lawful procedure prescribed under Section 41 of the Criminal Procedure Code (CrPC) before arresting the comedian.
Justice Nariman pointed out that the Supreme Court, in a scathing judgment in Arnesh Kumar versus State of Bihar in 2014, had warned State governments and their police from depriving personal liberty without following due process of law. Arrest was not a tool for harassment, the court had warned.
Tell us, Mr. Kirpal, did the police follow Section 41 before they arrested him? Justice Nariman asked Mr. Faruquis lawyer.
Also read: Freedom of speech and expression is not an absolute right, says Bombay High Court
No, My Lord… not at all, Mr. Kirpal replied.
Then that is all is needed for granting bail, Justice Nariman said, before immediately issuing notice to the Madhya Pradesh police to explain their actions.
The procedure under Section 41 was not followed despite the Supreme Court having adumbrated the necessity of it in the Arnesh Kumar judgment of 2014, Justice Nariman observed, before granting Mr. Faruqui ad-interim bail.
On January 28, the Madhya Pradesh HC refused bail, forcing the comedian to appeal to the top court.
In the Arnesh Kumar judgment, the Supreme Court had delved into how arrest brings humiliation, curtails freedom and cast scars forever. The police had not learnt its lesson or shed its colonial image despite decades of Independence, the court had observed.
The judgment had endeavoured to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically.
The need for caution in exercising the drastic power of arrest has been emphasised time and again by courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance, so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive, the Supreme Court had observed in the 2014 judgment, which became the crux for grant of bail to Mr. Faruqui.
The judgment had held that police officers who do not follow Section 41 would be liable for departmental action.