"Direction To Take Accused Into Custody Is Beyond Jurisdiction Of High Court, It is For The Investigating Agency To Decide": Supreme Court

Direction to take accused into custody is beyond jurisdiction of High Court; it is for Investigating Agency to take a call whether to arrest or not', Supreme Court has recently observed.

"We are approving the entire judgement of the High Court except one sentence- Only in so far as there is a positive direction to the Investigating Officer to arrest the petitioner, we are only setting that aside".

The bench of Justices Gupta and V. Ramasubramanian was considering an SLP against a May 24 order of the Karnataka High Court quashing the anticipatory bail granted by the Additional District and Sessions Judge, Mangaluru to the petitioner, a police officer, in connection with an FIR under sections 376 (rape) and 323 (hurt) for allegedly compelling the complainant for sexual intercourse on the false promise of marriage. Further, by the impugned order, the High Court had transferred the investigations to the Corps of Detectives (COD) and the Investigation Agency was directed to submit a final report not later than four months from the date of the order. Besides, the High Court had directed the District Superintendent of Police to initiate action against named police personnel for being hand-in-glove with the petitioner and for the lapses on their part and to submit a report within three months. Finally, the High Court had directed the Investigating Officer to take the petitioner-accused into custody and produce him before the concerned jurisdictional Court.

"I am continuously receiving life threats from him. How will I be protected during the trial if he is at large?", asked the complainant-in-person.

"There are alternative remedies for that. You can approach under the Witness Protection Programme. If he is arrested and seeks bail, you will also have the right to oppose that", Justice Gupta told the complainant.

"Whether the accused is liable to be arrested or not is dependent on the investigation of a particular crime. It is for the investigation agency, the COD in this case, to take a call. We will set aside and quash this condition. It is open to the IO to take a call as to if and when the petitioner is to be arrested", said the judge.

When the advocate for the petitioner pressed that the petitioner is cooperating in the investigation, Justice Gupta said to him, "'When to arrest' or 'not to arrest'- we won't say any of this. If the COD wishes to arrest, it will"

In the order, the bench recorded that the present SLP is directed against an order passed by the High Court of Karnataka on 24.05.2021, whereby the anticipatory bail granted to the petitioner by VI Additional District and Sessions Judge, Dakshina Kannada, Mangaluru was quashed for the offences under Section 323 and Section 376 of IPC. The investigations were transferred to Corps of Detectives (COD) and that the Investigation Agency was directed to submit a final report not later than four months from the date of the order.

There is another direction issued by the High Court which reads as under:"The Investigating Officer is directed to take the accused into custody and produce him before the concerned jurisdictional Court."

"We find that such direction to take the accused into custody is to beyond the jurisdiction of the High Court. Whether an accused is liable to be arrested is based upon the decision of the Investigating Officer depending upon the material collected during the investigation which may be conducted in a particular crime. It is for the Investigation Agency to whom the investigation has been entrusted to take a call as to when the petitioner is to be arrested. Therefore, the condition No.3 in the impugned order dated 24.05.2021 is set aside and quashed", ordered the bench.

Disposing off the SLP, the bench added that "It is open to the Investigating Officer to take a call as to when the petitioner is to be arrested or he is not to be arrested".

"Anticipatory bail cannot be granted (in a sexual assault matter) because, allegedly, the complainant has a bad history. Even if she has made such complaints in the past, she cannot be branded like this!", Justice Hemant Gupta has observed.