Date of judgement:
02 September 2021
Bench:
Justice Sanjay Kishan Kaul
Justice M M Sundresh
Parties:
Appellant – Aman Preet Singh
Respondent – C.B.I. Through Director
Subject
The Hon’ble Supreme Court reiterated the principles laid down regarding issue of arrest warrants when an officer-in-charge of a police station or an Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody.
Legal Provisions
- Section 87 of Code of Criminal Procedure – A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest-
(a)if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b)if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
- Section 170 of the Code of Criminal Procedure – Cases to be sent to Magistrate, when evidence is sufficient.
Overview
- The appellant herein had approached the Supreme Court seeking grant of anticipatory bail in Criminal Appeal No. 468/2021, which was disposed of by this court.
- This plea from the appellant arose out of the proceedings before the Special Chief Judicial Magistrate (CBI), Bhubaneswar, vide order dated 22.07.2019 wherein the judge noticed that since the accused persons had been accused for economic offences, it was appropriate to issue non-bailable warrants of arrest against the accused.
- The court noted that prosecution did not seek the interrogation of the appellant on or before filing of the charge sheet. The Counsel for the appellant prayed relief only to appear before the Trial Court and apply for regular bail and not to be arrested in that period of time. Taking into consideration the facts and circumstances of the appellant, this court granted protection to the appellant for a period of 8 weeks. Within this time frame, he shall apply for regular bail before the Trial Court.
- What was stated before this court was that, as per the SOP, in these difficult times, the appellant was supposed to join virtually and when he sought to enter appearance, his request was declined by the order dated 09.06.2021 by the Special Chief Judicial Magistrate (CBI), Bhubaneshwar, predicated on the reasoning that he had not remained physically present. It is this order which had been upheld by the impugned judgment dated 09.07.2021.
- The court was of the view that Section 170 of CrPC is misunderstood and referred to a recent judgement passed by this court in Siddharth v. State of Uttar Pradesh & Anr. (Criminal Appeal No. 838/2021) wherein it majorly relied on the judgement of High Court of Delhi in Court on its own Motion v. Central Bureau of Investigation (2004).
- Relevant portions observed from the judgement of High Court of Delhi are:
- 1. Whenever the officer-in-charge of the police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case, the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.
- 2. In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.
- 3. The Court shall, on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C., call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.
- The court held that the Magistrate, while accepting the charge-sheet, must issue a process of summon and not warrant of arrest. If he is to exercise his discretion of issuing arrest warrant, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.
- In view of the above observation, the court ordered the trial court to grant bail to the appellant on the next date on terms and conditions to its satisfaction and also made clear that the interim protection granted by this Court would continue till the appropriate order is passed by the trial court.
Issue
- Whether a Magistrate can issue a warrant of arrest at his discretion wherein a charge-sheet is filed without arresting the accused during investigation and without producing the accused in custody as referred in Section 170, Cr.P.C?
Judgement Analysis
- The order copy starts as follows “This is one more case based on a misconception and misunderstanding of Section 170, Cr.P.C.!”. It is not mandatory for the investigating officer to arrest and produce custody of the accused under Section 370 of the CrPC if it is certain that the accused does not disappear or abscond.
- Another point observed in the Delhi High Court’s judgement is that “rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to nonappearance despite service of summons or absconding or failure to obey summons and the Court, in such a case, shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.”
- The reasoning behind this observation is that if the accused is not arrested during the course of investigation or brought into custody and if is suddenly issued a non-bailable warrant of arrest and is incarcerated, it is against the principle of bail. In such scenario, the court directs that the accused be released on bail. The court also further observed that “the court shall, on appearance of an accused in non-bailable offence, who has neither been arrested by the police/Investigating Agency during investigation, nor produced in custody as envisaged in Section 170, Cr.P.C., call upon the accused to move a bail application if the accused does not move it on his own and release him on bail, as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.”
- This misunderstanding and misconception by the trial courts is prevalent that the Supreme Court even ordered the order copies of both the judgements to be circulated to the trial courts as a primer to trial courts to use while dealing with Section 170 of the CrPC.
Conclusion
While it has been observed that the practice of trial courts demanding the arrest and custody of accused at the time of filing the charge-sheet is prevalent, it is not a mandatory procedure and should be considered according to the facts and circumstances of the accused.
The rationale of the Delhi High Court is conclusive and cogent while holding that an accused who was not arrested by the investigating authority while the investigation was ongoing and sending him to jail by refusing bail is against the principle of justice.
If the Magistrate wants to exercise his discretion, he is required to record the reasons under Section 87 of the CrPC that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.
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