President of the Wrestling Federation of India (WFI) and BJP MP Brij Bhushan Sharan Singh, currently accused in two FIRs regarding sexual assault, including one under the Protection of Children from Sexual Offences (POCSO) Act, has given a public call, stating, “Under the leadership of seers, we will force the government to change the (POCSO) law.”
Whether he will be able to do so or not remains to be seen. But it should be a matter of grave concern for everybody that Singh is an accused who has not only been intimidating witnesses against him, but he also feels that he has the clout to have the law itself challenged and changed.
The triple test under Indian law for the grant of bail is that a person ought to be granted bail unless there are apprehensions that the person may abscond or tamper with evidence or influence witnesses. Along with the above, the gravity of the offence is also to be considered a factor while considering the issue of arrest and grant of bail.
While Singh being a prominent public figure may not be considered a flight risk, he has made worrisome statements over the past couple of weeks and said that the protesting wrestlers should return the money spent on their training and that they should give up their government jobs rather than their medals.
This was clearly in the context of the allegations against him and constituted a direct threat to victims and witnesses. He also gave a statement comparing Vinesh Phogat to Manthara implying that she was the cause of a conspiracy against him. Comparing a key witness to a reviled figure in the Ramayana cannot be seen as anything else but an attempt to intimidate that witness by defaming her publicly.
The power to arrest, or to not arrest, as the case may be, belongs to the investigating officer of the case. Since the offence under the POCSO Act is a grave one, it is usually a given that an accused under this Act will be arrested by the police.
The accused can always apply for bail in court. Even in cases where the court grants bail, the usual condition is that the accused will not meet or influence the witnesses in the case. This means that if any attempt is made to influence the witnesses, bail can be cancelled.
What’s shocking is that Singh continues to make statements which are clearly aimed at intimidating the witnesses. To relate this to the triple test for bail, this would amount to both, tampering with the evidence and influencing witnesses. The question remains: Why has he not been arrested?
It is not as if there is any court order protecting Brij Bhushan Singh from arrest. He has, as per publicly available information, not even sought anticipatory bail. Singh seems to be confident regarding his standing with the police. According to the Indian Express, a senior police officer stated on May 5, “We have no evidence against him yet. We are yet to record all statements under Section 161 and Section 164 (court). As per investigation requirement, notices will be sent. For now, we have issued a notice to WFI and are waiting for their report.”
Under POCSCO, or for that matter offences related to sexual assault under the Indian Penal Code, a statement by a victim naming an accused is enough to initiate the case against them. The only way the statement of the ‘senior police officer’ makes sense is if the victims have not named Singh as an accused.
This is evidently not the case as he has not only been made as an accused in the FIR, there is a public campaign naming him as an accused. The other part of the statement about waiting for a report from the WFI is simply bizarre. The police are to conduct their own investigation rather than rely on ‘any report’ from the WFI. What is even more egregious is that the WFI is still headed by Singh.
The majesty of the law lies in its uniform application to everybody. Singh remains an accused with a presumption of innocence in his favour but then this presumption is available to every accused under criminal law.
Either the Delhi police should follow a policy of no arrest in all POCSO cases or they should ensure that the law has an equal application to everybody, regardless of their political affiliation or status. Uniform application of the law of arrest would go a long way in allaying the apprehension of bias against the police and administration.
Sarim Naved is a Delhi-based lawyer.