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The Rediff Special/ Shrikant Bhat

'In no case, is arrest compulsory'

Advocate Shrikant Bhat provides a ready reckoner to the legal issues involved in the Bal Thackeray case.

A charge sheet:

In India, when a suspect, also called an accused, is prosecuted, the prosecution case against him is given to him in writing. For example, statements made by the witnesses against him, a chemical analyser's report or any other material that is intended to be used against the accused in the trial against him or the material that is intended to be used against him, will be given to him in writing.

A charge sheet basically means a compilation of papers, statements, panchnama, chemical analyser's report or an expert evidence statement. The idea being that the accused should know the precise case against him -- who are the witnesses against him, what do they say? The accused cannot be called by surprise. There is no element of surprise in a criminal case. This element is eliminated by giving him a copy, so that he knows what the case against him is and he comes prepared. That is called a charge sheet.

The charge sheet against Bal Thackeray:

As of today, the copy of the charge sheet is not ready. It is getting ready. Now, with respect to Bal Thackeray's case, the charge sheet will consist of editorials in Saamna, published way back in 1992-1993.

It could also consist of a statement saying that the riots resulted after those articles were published.

I must emphatically say I have no knowledge of the contents of the proposed charge sheet other than what has been appearing in the press.

Anticipatory bail:

Yes, Thackeray can take anticipatory bail.

Section 153 (A) of the Indian Penal Code:

Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc and doing acts prejudicial to maintenance of harmony. The punishment could be imprisonment which may extend to three years or fine or both. The fine is not limited. The maximum limit can be levied by the magistrate. The Act was first formed in 1969. It was mainly done by Indira Gandhi to curb the RSS.

Nobody has been arrested under this Section yet, but under an equivalent Section, a prosecution was filed. The section that is being referred to here is Section 153, which deals with provocation to cause a riot.

Dr Syedna Burhanuddin, leader of the Bohra community, during his discourses which were given over a loudspeaker, was alleged to have said something that hurt the followers of Prophet Mohammed. This infuriated a section of people which resulted in a riot in 1988.

The then chief minister of Maharashtra, Sharad Pawar moved the high court and said that the peace which existed between the Sunnis and the Shias would be hampered and hence no further action should be taken.

Today, there exists peace between the Hindus and the Muslims. But Chhagan Bhujbal does not want to apply the same logic.

Thackeray's defence:

Section 468 of the Indian Penal Code states that if you have to prosecute anyone under Section 153(A), or any other case that carries a sentence of three years, you have to file the case within three years. Similarly, if the maximum punishment is seven years, one has to file the case within seven years. But if you fail to do so, you have to tell the court why you could not come within the stipulated time.

After the reasons as to why the court should take cognisance of the case in spite of it being time-barred, have been stated, it will issue a notice to Thackeray and inform him that it has received an application from the police, asking it to condone the time limit.

The court has to take into consideration Thackeray's side of the story. It has to then take a decision on the question of time limit keeping in mind Sections 468, 469, 470 and 473 of the Criminal Procedure Code which relate to time limit and exceptions. And lastly, the court may or may not condone the delay of the prosecution. If the court condones the delay, the prosecution against Thackeray can proceed. If it does not, then the prosecution cannot proceed.

Thackeray's defence would definitely be Section 468 -- that the case is time barred. Also considering the Syedna's case, he may ask for quashing the case, that is terminating it.

I would like to say that arrest is absolutely discretionary. In no case, is arrest compulsory.

Advocate Shrikant Bhat spoke to Kanchana Suggu

'On the face of it, there is no need to arrest'

The Rediff Specials

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