Justice A P Lavande observed that “the investigating officer has to take a decision whether to arrest the accused or not on the well settled principles governing the arrest of an accused involved in a cognizable and non-bailable offence”. The arrest of an accused involved in the cognizable offence without justifiable cause violates his fundamental right to liberty, the high court said.
The high court gave the direction while dismissing the applications challenging the bail granted by the Sessions court at Margao to former MLA Prakash Velip, and MLAs Ramesh Tawadkar and Vasudev M Gaonkar in the Balli rioting case on May 25.
The applicant, who had filed three applications, had approached the high court seeking cancellation of the bail and alleged that the Sessions court had granted the bail following a ‘no objection’ given by the prosecution. While arguing before the high court that the accused were arrested since they insisted on their arrest, the prosecution said that there was no ‘material’ (evidence) against any one of them. In this case, the court observed thus: “The prosecution was not justified in arresting the accused on the ground that the accused insisted on their arrest. The investigating officer is bound to follow the principles upon which the accused involved in a cognizable and non-bailable offence has to be arrested.”
While also dealing with the prosecution’s argument that there was no material against the accused, the high court held that this submission was contrary.
The high court noted that an assistant sub-inspector of police, who was an informant, had implicated the three accused in the FIR filed in the case. In the reply filed before the Sessions court, the police stated that the accused were active members in the agitation and the statement of several witnesses also implicated the three accused, the court added. The court also deemed it appropriate to send the copy of the order to the director general of police (DGP) for taking appropriate steps to ensure that henceforth no arrest is made solely on the ground that the accused had surrendered and insisted that he should be arrested.
Referring to the arrest of the accused by crime branch on August 5 after almost 70 days from the day of incident and considering other circumstances, the High Court declined to cancel the bail granted to the accused.