The Supreme Court recently comprising of a bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy ruled that Section 170 of the Code of Criminal Procedure (CrPC) does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet (Siddharth v. State of Uttar Pradesh).
The Bench held that the word “custody” appearing in Section 170 of the CrPC 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 held, "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 (while filing chargesheet)".
Facts of the Case
An FIR which was registered against the appellant seven years ago. The appellant was a supplier of stones to U.P. Rajya Nirman Ltd., and was booked under Section 409 (Criminal breach of trust) and Section 120-B (Punishment for criminal conspiracy) of the Penal Code, 1860. The appellant had already joined the investigation and the chargesheet was ready to be filed. An arrest memo was issued against him. The trial court took a view that unless the person is taken into custody, the chargesheet will not be taken on record in view of Section 170 (Cases to be sent to Magistrate, when evidence is sufficient) of the Criminal Procedure Code.
The appellant had filed an anticipatory bail application before the Allahabad High Court, which was rejected. The High Court noting that the huge amount of revenue loss and the fact that the IO had ordered his arrest, dismissed the anticipatory bail application.
Aggrieved, by this order, the applicant moved the Supreme Court through Special Leave.
Contention of the Parties
The bail applicant submitted before the investigating officer that on the recommendation of the then Officials, the Consortium of lease holders was constituted and that he was only supplier of stone for which the royalty was paid in advance to the lease holders. Further that he was not involved in the tendering process and has submitted all documents to the IO and his statement has also been recorded. He was apprehending arrest as the IO had directed his arrest for which the police had come to his house on 05.05.2021.
He even said that in a similar case, a similarly situated persons had filed a writ petition for quashing of the FIR in which interim protection was given to them that they may not be arrested till filing of the charge sheet. It was also contended that the applicant had provided stone worth Rs. 90 lakhs and only Rs. 27 Lakhs were paid and due to the pendency of the criminal case, the payment has been stopped.
It was also submitted on his behalf that he does not have a chance of absconding and after 7 years of the alleged FIR, no charge sheet has been filed against him. Further in the counter affidavit, the state has not provided reasons for arrest.
The Ld. AGA for the State made a submitted that Rs. 4276, 83,83,43/- was allocated by the state which was misused and 34% of the total expenditure was taken away by the accused persons of whom the bail applicant was one. Therefore, the anticipatory bail application should be rejected.
Courts Observation & Judgment
The Supreme Court noted that personal liberty is an important aspect of Constitutional mandate and that an "occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond".
The Court also noted that merely because an arrest can be made because it is lawful does not mandate that arrest must be made. The court even said that if arrests are made in a routine manner then it causes harm to the reputation of a person.
The bench observed, "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 bench referring to the judgment in the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260, reiterated that merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. The bench observed, We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.”
The court taking note of section 170 CrPC referred to the judgment in the case of Court on its own motion v. Central Bureau of Investigation [2004 (72) DRJ 629].
The Court said, "The Delhi High Court is not alone in having adopted this view and other High Courts apparently have also followed suit on the proposition that criminal courts cannot refuse to accept a chargesheet simply because the accused has not been arrested and produced before the court."
The Court seting aside the High Court order allowed the appeal.
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