Permission, no obligation

In the judgment of the case - Siddharth v. The state of Uttar Pradesh & Another, delivered on August 16, 2021, Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy at the Supreme Court, have taken a critical view of the trial courts insisting on the arrest of an accused as a pre-requisite formality to take the charge sheet on record in view of the provisions of section 170 of the Cr.P.C. "We consider such a course misplaced and contrary to the very intent of section 170 of the Cr.P.C."

The SC has observed further, that "if arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigation Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout co-operated with the investigation, we fail to appreciate why there should be a compulsion on the officer to arrest the accused".

The SC has observed with certain amount of anguish that it is faced with a situation where contrary to the observations in the decision of the case of Joginder Kumar v. State of U.P. & Others-(1994) 4 SCC 260, how a police officer has to deal with a scenario of arrest, wherein the trial courts are stated to be insisting on the arrest of an accused as a prerequisite formality to take the charge sheet on record.

In this case, the short issue before the Supreme Court for consideration was whether the application of the appellant for anticipatory bail ought to have been allowed. The SC has noted that as per the order of August 2, 2021, it had granted interim protection.

The fact which emerged was that the appellant with 83 other private persons were sought to be roped in a FIR which was registered seven years ago. The appellant has claimed that he was a supplier of stone for which royalty was paid in advance to these holders and claimed no involvement in the tendering process. Similar person was stated to have been granted interim protection until filing of the police report. The appellant had already joined the investigation before approaching the SC and the charge sheet was stated to be ready to be filed. However, the reason to approach the SC was on account of arrest memo having been issued.

It was not disputed before the SC by counsel for the respondent that the charge sheet was ready to be filed but his submission was that the trial court had taken a view that unless the person was taken into custody, the charge sheet would not be taken on record, in view of section 170 of the Cr.P.C.

There are judicial precedents available on the interpretation of the provisions of section 170 Cr.P.C., besides the judgment by the Delhi HC in the case – Court on its own motion v. central Bureau of Investigation- (2004) 72 DRJ 629. In that case, the Delhi HC has dealt with an argument similar to the contention of the respondent that section 170 Cr.P.C. prevents the trial court from taking a charge sheet on record unless the accused is taken into custody. The relevant extracts are as under:

"15. Word "custody" appearing in this section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the Investigating Officer before the Court at the time of filing of the charge sheet whereafter the role of the Court starts. Had it not been so, the Investigating Officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court.

"16. In case , the police/Investigating Officer thinks it unnecessary to present the accused in custody for the reason that accused would neither abscond nor would disobey the summons as he has been co-operating in investigation and the same can be completed without arresting him, the I.O. is not obliged to produce such an accused in custody.

"19. It appears that the learned Special Judge was laboring under a misconception that in every non-bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.

"20, Rather the law is otherwise. 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 by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapons of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary.

"Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in-charge of the Police Station thinks that presence of accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the processor fleeing from justice cannot be ruled out."

The SC has noted that personal liberty is an important aspect of our constitutional mandate. The occasion to an accused during investigation arises when custodial interrogation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. 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 (decision in the case of  Joginder Kumar).

In this case, the appellant joined the investigation after its completion and seven years after the registration of offence. There was no reason to arrest him at this stage, before the charge sheet is taken on record. The SC has recorded the assurance given by the appellant’s counsel that on the summons being issued, the appellant will appear before the Trial Court.

The SC has set aside the impugned order and allowed the appeal.