Siddharth vs. State of Uttar Pradesh, SC 2021
FACTS – The appellant along with 83 other private persons were sought to be roped in a FIR which was registered seven years ago. The appellant claims to be supplier of stone for which royalty was paid in advance to these holders and claims not to be involved 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 this Court and the chargesheet was stated to be ready to be filed. However, the reason to approach this Court was on account of arrest memo having been issued.
CAUSE – The chargesheet is ready to be filed the trial court has taken a view that unless the person is taken into custody the chargesheet will not be taken on record in view of Section 170 of the Cr.P.C.
ARGUMENTS – Contention of the learned counsel of the respondent is that Section 170 Cr.P.C. prevents the trial court from taking a chargesheet on record unless the accused is taken into custody.
ISSUE – Whether merely because an arrest can be made because it is lawful, does it mandate that arrest must be made so as to take the chargesheet on record.
DECISION – There are judicial precedents available on the interpretation of the aforesaid provision albeit the Delhi High Court. In Court on its own motion v. Central Bureau of Investigation,2004, the Delhi High Court dealt with an argument similar to the contention of the respondent that Section 170 Cr.P.C. prevents the trial court from taking a chargesheet on record unless the accused is taken into custody:
“…….. 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 chargesheet 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……… “
In a subsequent judgment the Division Bench of the Delhi High Court in Court on its own Motion v. State, 2018 relied on these observations in Re Court on its own Motion and observed that it is not essential in every case involving a cognizable and non-bailable offence that an accused be taken into custody when the chargesheet/final report is filed. 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.
SC held that we are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. 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.
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.
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. 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. 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.
In the present case when the appellant has
joined the investigation, investigation has
completed and he has been roped in after seven years of registration of the FIR we can think of no reason why at this stage he must be arrested before the chargesheet is taken on record.
We accordingly set aside the impugned order and allow the appeal.