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Battle On the sidelines
While the battle continues in the Rajya Sabha on the Jethmalani resignation issue, no-one missed the intra-Congress battle between Pranab Mukherjee and Arjun Singh

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LAW, BAL THACKERAY
Great Escape

Was the Maharashtra Government's bid to tame the Tiger a fiasco? INDIA TODAY offers a primer on the legal and political questions around it.

By V. Shankar Aiyar

What exactly happened on July 25?
Bal Thackeray was arrested and produced in court. The Maharashtra Government stated that investigations were complete, the chargesheet would be filed shortly, and the accused was not required for interrogation. The defence prayed for bail. Additional Metropolitan Magistrate B.P. Kamble ordered that the offence registered was barred by limitation under Section 468 (2)(C) of the CRPC, released the accused and closed the case.

What are the terms for limitation?
Section 468 of the CRPC specifies that no court shall take cognisance of an offence after the expiry of the period of limitation. Given that offences under Section 153 A are punishable with imprisonment of up to three years, prima facie the case against Thackeray would be time-barred after January 1996.

What was the reason for the delay?
Much of the delay (from March 4, 1995 to October 1999) was because the Sena-BJP combine was in power. There was no question of the government according sanction for prosecution against Thackeray. Then chief minister Manohar Joshi is on record that the file was never put up "perhaps because the Legal Department felt the case was time-barred".

Why did the Sharad Pawar Government add to the delay?
It was waiting for the Srikrishna Commission's report and judgement on a writ by former municipal commissioner J.B. D'Souza, asking the court to direct the state government to sanction the Sena chief's prosecution. "But," says a state official, "the Election Commission via an order dated August 12, 1994 barred the state government from arresting opposition leaders."

But what about the delay in according a sanction?
Advocate Majeed Memon cites Section 470 (III) of the CRPC and says, "The time taken for obtaining sanction needs to be excluded. So the case can't be barred by limitation. Besides, courts are bestowed with discretionary powers like CRPC Section 473 to take cognisance even after a case is deemed time-barred."

What steps should the state Government have taken?
The state Government contends that the only issue under challenge was the remand application, not the merits of the case and that the chargesheet was not filed before the magistrate and there was no question of the magistrate considering the chargesheet or taking cognisance of the case. "But the remand application called for a view on the merits of the case," argues advocate Mahesh Jethmalani. "You have to apply for condonation." Shiv Sena MP and advocate Adhik Shirodkar agrees: "The accused has a right not to be prosecuted." The Supreme Court has also ruled that arrest is not a precondition to filing a chargesheet. Deputy Chief Minister Chhagan Bhujbal, however, maintains that there was no need for condonation and that the "remand application underlines the fact".

Why was permission required for Thackeray's arrest?
Not because Thackeray was Thackeray but because the offence was registered under Section 153 A of the IPC governed by Section 196 (A) of the CRPC which states that no court shall take cognisance of any offence punishable under Section 153 A except with the previous sanction of the Central or state government. The state government's sanction was sought on April 24, 1994 and given on July 20, 2000.

Was the arrest wrong?
Jethmalani and Shirodkar feel strongly about it. According to them, technically an arrest is necessary under three conditions: when the state fears the accused will abscond, hamper investigation or tamper with witnesses. In this case, they add, Thackeray would not have absconded, the state itself had admitted in court that no investigations were needed and there were no witnesses. "So all the three conditions were absent and the arrest was mala fide and avowedly for Bhujbal's personal vendetta against Thackeray," says Shirodkar. However, the Government contends that Thackeray's threats made it finally an issue not of law but of governance. "No government will sit idle when one man challenges its writ and assumes to be seen as being above the law," says a government official.

Is Bal Thackeray above the law?
The abiding principle of Indian law is: "Be you ever so high, the law is above you." So Bal Thackeray cannot be above law.

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