The Rajeev Kumar IPS case consists of a clash between CBI and State Police, Midnight Dharna by a Chief Minister along with an IPS Officer against Central Agency, a high rank officer seeking protection from arrest by the CBI and so on.
On May 30, Protik Prakash Banerjee J., Calcutta High Court raised an important question of law, as to whether the CBI can seek custody of Kumar, who has been alleged by the CBI to have helped the Accused tampering the evidence in Saradha Case, but Kumar is not in either Witness or Accused as of the FIR submitted by the CBI? And Should new FIR to be filed against Kumar under sections 201/202 of Indian Penal Code, dealing with destruction of evidence?
The Section 201 prescribe maximum of 7 years imprisonment if the main case is punishable with death penalty, while section 202 prescribe maximum of 6 months imprisonment, where both the sections fall within the Section 41 of Code of Criminal Procedure, which prescribe arrest only in exceptional circumstances. The SC held in Arnesh Kumar v. State of Bihar (AIR 2014 SC 2756), that though a person being named accused in FIR, and offence in punishable with 7 years imprisonment, the arrest is not necessary, where mere attendance before Police Officer as per section 41A of CrPC. In case of arrest sufficient evidence and chare sheet are to be submitted before the court.
It was stated by Kumar that CBI inquired him only as witness for the notice sent by the CBI u/s 160 of CrPC, for which the witness is bound to answer truly all question related to the facts of the case as per section 161(1) read with 161(2) od CrPC, so a person cannot be taken into custody for a notice sent u/s 160 of CrPC. Most of all the court expressed its view that custodial interrogation is not the norm for high officials who have credible roots in society and who are reliable. Thus, the Court posted the case before the regular bench after the vacation since the issues require further hearing.