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2004 (1) TMI 719 - HC - Indian LawsValidity of the Special Judge's order refusing to accept the charge-sheet without the accused being in custody - Scope of Section 173, CrPC - Guidelines for arrest and bail in non-bailable and cognizable offenses - Whether it is legally permissible for any Criminal Court to refuse to accept the charge-sheet where accused is neither arrested during investigation nor produced in custody by the Investigating Officer at the time of filing the charge-sheet wherever there is sufficient evidence to try the accused - HELD THAT - Section 173 of the Code of Criminal Procedure does not permit the Criminal Court to adopt such a course. Such a course is even otherwise fraught with serious consequence of failure to take cognizance of the charge-sheet if it becomes barred by time in the process of procuring the custody of the accused for production before the Court as law provides a limitation for taking cognizance of the charge-sheet. Moment the charge-sheet is filed, it is the duty of the Court to accept it. It has no powers to return the charge-sheet directing the Investigating Officer to first produce the accused in custody. It is not imperative or necessary for the Officer-in-charge of the Police Station to forward each and every accused in custody at the time of filing of the charge-sheet wherever there is sufficient evidence to try the accused. Perusal of Section 173, CrPC further shows that as soon as investigation is completed the Officer-in-charge of the Police Station is required to forward the police report to Magistrate empowered to take cognizance of the offence in the form prescribed there under with the information contained in Sub-clauses (a) to (g). 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 investigation can be completed without arresting him, the I.O. is not obliged to produce such an accused in custody. 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 weapon 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 process or fleeing from justice cannot be ruled out. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society. This Court has laid down aforesaid law in various cases decided from time-to-time for the guidance and compliance of the subordinate Courts but it is with great anguish and pain that this Court observes that it has come across a large number of orders passed by the subordinate Courts in complete violation of the law laid down by this Court and Supreme Court in many more other cases. In view of the wide ramifications of the law laid in this case and cases referred therein and for the benefit of the society and people at large, Registrar General of this Court is directed to send the copy of the judgment to Police Commissioner for guidance and compliance by the SHOs/Investigating Officers and to all the Judicial Officers of Delhi and to the Director, Central Bureau of Investigation.
Issues Involved:
1. Legality of the Special Judge's refusal to accept the charge-sheet without the accused being in custody. 2. Interpretation and application of Sections 170 and 173 of the Cr.P.C. 3. Guidelines for arrest and bail in non-bailable and cognizable offenses. Summary: 1. Legality of the Special Judge's refusal to accept the charge-sheet without the accused being in custody: The Court took suo motu notice of a news item where a Special Judge returned a CBI charge-sheet because the accused was not arrested during the investigation. The Special Judge's action was based on the belief that the CBI was not adhering to a uniform policy in arresting accused persons during investigations and was flouting Section 170, Cr.P.C. The Court held that it is not legally permissible for any Criminal Court to refuse to accept a charge-sheet where the accused is neither arrested during the investigation nor produced in custody by the Investigating Officer at the time of filing the charge-sheet. Section 173, Cr.P.C. does not permit such a course, and the Court must accept the charge-sheet upon its filing. 2. Interpretation and application of Sections 170 and 173 of the Cr.P.C.: Section 173, Cr.P.C. outlines the procedure for completing an investigation and forwarding the report to the Magistrate. It provides three courses of action for the Magistrate: accept the report and take cognizance, disagree and drop the proceedings, or direct further investigation. Section 170, Cr.P.C. requires the Investigating Officer to forward the accused under custody to a Magistrate if there is sufficient evidence. However, the term "custody" does not necessarily mean police or judicial custody but merely the presentation of the accused before the Court. The Court clarified that it is not mandatory for the Investigating Officer to arrest every accused while filing the charge-sheet if the investigation can be completed without arrest. 3. Guidelines for arrest and bail in non-bailable and cognizable offenses: The Court emphasized that arrest should be avoided unless necessary for investigation or custodial interrogation. The liberty of a citizen is of paramount importance, and arrest should only be made when essential for the investigation. The Court issued specific directions to the police and Investigating Agencies: - Arrest should be avoided if the investigation can be completed without it. - Arrest may be necessary for grave offenses with severe punishment or if there is a likelihood of the accused absconding. - The Court also provided guidelines for Criminal Courts, stating that they should accept charge-sheets without the accused being in custody and issue summons instead of warrants of arrest unless there are specific reasons to believe the accused will not comply. The Court expressed concern over the misuse of Sections 498A/406, IPC, and recommended making Section 498A, IPC bailable and compoundable to save the institution of marriage. The judgment concluded with directions for compliance by the police, Investigating Agencies, and subordinate Courts to ensure adherence to the legal principles laid down.
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