Investigating Officer Is Not Required To Arrest Each And Every Accused At The Time Of Filing Charge-sheet: Supreme Court

The Supreme Court on Wednesday held that 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 charge sheet.

The court observed that the practice of some Trial Courts of insisting on the arrest of an accused as a pre-requisite formality to take the charge-sheet on record is misplaced and contrary to the very intent of Section 170 of the Criminal Procedure Code.

In the appeal before the Supreme Court against dismissal of an anticipatory bail application, the court noted that the trial court had 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.

The court noted that some Delhi High Court judgments (Court on its own motion v. Central Bureau of Investigation) have held that it is not essential in every case involving a cognizable and non-bailable offence that an accused be taken into custody when the charge sheet/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. ", the court observed while referring to the observations made by the Gujarat High Court in Deendayal Kishanchand & Ors. v. State of Gujarat.

The court observed that 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 charge sheet. The court said.

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 have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the chargesheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court.

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.

The court added that personal liberty is an important aspect of our constitutional mandate. It observed:

"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.4 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."

We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar's case how a police officer has to deal with a scenario of arrest, the trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the chargesheet 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 court noted that, in the present case, the accused had 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 charge sheet is taken on record, the court said while allowing the appeal.

Siddharth vs. State of Uttar Pradesh ; SLP(Crl) 5442/2021
Coram: Justices Sanjay Kishan Kaul and Hrishikesh Roy
Counsel: Sr. Adv P. K. Dube, Sr. Adv Garima Prashad
Citation: LL 2021 SC 391

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