“Merely because an arrest can be made because it is lawful does not mandate that arrest must be made,” the Supreme Court said on August 16, while dealing with an appeal filed against an arrest memo issued against an accused who had been co-operating with the police throughout the investigation.
The bench of Justices SK Kaul and Hrishikesh Roy highlighted that the necessity of arrest arises only if it is a heinous crime, or where there is a possibility of influencing the witnesses, or accused may abscond. The whole issue was around section 170 of the Code of Criminal Procedure (CrPC), whereby the trial court refused to take the chargesheet on record without arresting the accused and thus arrest memo was issued.
The FIR was registered against the appellant, Siddharth, 7 years ago and the chargesheet is ready to be filed now. The trial court, however, refused to take the chargesheet on record unless the appellant is arrested, as per section 170 of the CrPC.
The section 170 states that if it appears to the investigating officer that there is sufficient evidence, he shall forward the accused under custody to a Magistrate empowered to take cognisance of the offence upon a police report, and to try the accused or commit him for trial and if the offence is bailable, and the accused is able to give security, shall take security from him for his appearance before such Magistrate.
The court referred to the interpretation of this section made by Delhi High Court in its own motion v. Central Bureau of Investigation 2004 (72) DRJ 629. The high court had interpreted the word “custody” in the section to connote the presentation of accused by the Investigating Officer before the Court at the time of filing of the chargesheet, whereafter the role of the Court starts. The court was dealing with a similar issue and stated that the trial court judge was under a misconception that in every non-bailable and cognisable offence the police are required to invariably arrest a person, even if it is not essential for the purpose of investigation. The court instead pointed out that the law is otherwise and that “In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided…”
The bench then cited Deendayal Kishanchand & Ors. v. State of Gujarat 1983 Crl.LJ 1583 whereby Gujarat High Court had held thus, “The refusal by criminal Courts either through the learned Magistrate or through their office staff to accept the charge-sheet without production of the accused persons is not justified by any provision of law… when the police submit the charge-sheet, it is the duty of the Court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence. Likewise, police authorities also should impress on all police officers that if charge-sheet is not accepted for any such reason, then attention of the Sessions Judge should be drawn to these facts…”
The Supreme Court said that it is in agreement with these views of the high courts and held thus,
“It has rightly been observed on consideration of Section 170 of the Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet.”
The court said that it has come across cases where despite cooperating with the investigation, on filing of chargesheet non-bailable warrants have been issued.
“We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word “custody” appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet,” the court clarified.
The court noted that personal liberty is an important aspect of our constitutional mandate. On the necessity of arrest, the court said, that if it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond, arrest can be made.
“Merely because an arrest can be made because it is lawful does not mandate that arrest must be made,” the court said. The court stated that a distinction must be made between existence of power to arrest and justification for exercising it.
“If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused,” the court observed.
The court said that the trial court’s insistence on arrest of an accused as a pre-requisite formality to take the chargesheet on record citing section 170 of CrPC is misplaced and contrary to the intent of the section.
The court, in the present case, stated that since the appellant has joined the investigation, and the same has completed, “we can think of no reason why at this stage he must be arrested before the chargesheet is taken on record”. The appellant’s counsel already submitted to the court that on summons being issued the appellant will put the appearance before the trial court.
The court thus set aside the impugned order (arrest memo) and allowed the appeal.
The complete order may be read here:
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