Case did not deserve arrest and parading of the vendors

The after-effects of the publication of the newspaper edited by Ms Shirin Dalvi, Editor of Avadhnama, containing the offending cartoon, is a point to ponder for every citizen of this country. The lady in question has gone underground because of the threats she has received and the fear that they have struck in her.

The arrest of two newspaper vendors for delivering the Urdu daily, containing the Charlie Hebdo cartoons on its front page, their subsequent production in court and their being granted bail by the Metropolitan Magistrates Court - which questioned the Investigating Officer, "How can you pick up someone and put them in jail?" is a reminder to the police machinery against exercising their power of arrest wantonly and without any application of mind. The powers of arrest, though freely available to the police machinery ought to be exercised with utmost care and caution and a balance has to be struck between the powers of arrest and Article 21 of the Constitution of India, which protects personal liberty of an Indian Citizen.

Section 295-A of the IPC, invoked by the Mumbai Police, is a flagrant violation of law in the present case. It makes it obligatory on the prosecution to prove that a person accused of an offence Section 295-A of the IPC, had mens rea (a legal phrase used to describe the mental state a person must have been in while committing a crime for it to be intentional). It has to be established that the religious feeling of a community was outraged by an accused and that his intention must not only be malicious but must be deliberate as well.

Looking at the case on hand, by no stretch of imagination can anyone presume that the two newspaper vendors had any deliberate or malicious intent in circulating the offending newspapers. It cannot even be said that they had any intention of offending any religion by words, either spoken or written, or by signs or visible representations to insult the religious feelings of a community merely because they were vending newspapers.

The Investigating Officer who arrested the two, could not even have collected any material to remotely suggest that both these individuals had any mens rea to offend a religion by vending the newspapers. I am not sure if the Police Officer even made an attempt to collect evidence, to even prima facie tender before the Magistrate that these two individuals had any intention to insult the religion in question. The Officer also ought to have taken note that as and when the investigations are complete, it is obligatory on the part of the Mumbai Police to seek Sanction from the State Government to prosecute the two vendors under Section 196 of the Code of Criminal Procedure, 1973.

It would have been sufficient enough for the Investigating Officer to record a First Information Report, collect evidence and then seek the sanction of the State Government to prosecute, if he found sufficient material against the two vendors in question. The case did not deserve the arrest and parading of these two individuals before the media, prior to their production before the Court. The Supreme Court has time and again warned the prosecuting agencies from parading such Accused before the media. The Investigating Officer did not even take care not to disclose the identity of the Accused vendors, in as much as once their identity is disclosed, they are susceptible to threats and danger to their life, like Shirin Dalvi is living under fear of death.

The Investigating Officer in question, ought to have taken care to produce the vendors in court, if at all, under a veil, lest we see another violent reaction from religious fundamentalists. It is time the State Government takes appropriate action to prevent this incident from escalating further.

The writer is an advocate