The legal issues

THE arrests made in Chennai in connection with the alleged corruption in the construction of flyovers in the city raise the basic question whether these could have been effected without a warrant issued by a magistrate. Section 2 (c) of the Code of Criminal Procedure (CrPC) says that "'cognisable offence' means an offence for which, and 'cognisable case' means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant." The First Schedule lists the cognisable and non-cognisable offences.

Basically, if a person is wanted for a cognisable offence, a police officer can arrest him without a warrant. But there are various circumstances under which an arrest warrant may be issued or may not be issued by a court.

N. Natarajan, Senior Advocate, pointed out that conventionally, the Central Bureau of Investigation (CBI) did not arrest persons for an offence of this kind (corruption) because the accused would not abscond. The CBI arrested persons only in cases that concerned the security of the country. These related to offences such as as committing a terrorist act, throwing a bomb and so on. Natarajan said in such cases the accused were detained because there was every likelihood of their absconding. However, in corruption cases that related to public servants, he pointed out, the State police investigated them, gathered evidence, and arraigned them in a court. In this particular case, Natarajan pointed out, the police had arrested a number of persons even before the investigation was complete. He added, "It does not appear to me that a bona fide investigation has been done. It appears to me that these (arrests) have been done to create an opportunity to assault and belabour political opponents."

Another advocate pointed out that in December 1996 Jayalalithaa was arrested only after her bail applications were rejected. Her arrest came a day after Justice C. Shivappa of the Madras High Court rejected her anticipatory bail applications in seven of the corruption cases against her.

But in Karunanidhi's case, the investigation was not completed. Neither was any application for anticipatory bail rejected. He had not even sought anticipatory bail.