2017 (10) TMI 1611 - HC - Indian Laws

Jurisdiction - power of Metropolitan Magistrate (MM) - accused not arrested by investigating agency - authoritative determination - Whether a MM can examine the discretion exercised by the IO for arresting or non-arresting the accused persons while considering the charge-sheet at the stage of taking of cognizance and if it is found that the IO has not exercised his discretion lawfully whether the Court of MM can return the charge-sheet for further investigation on the point of arrest of accused persons? HELD THAT - The view taken by the learned Magistrate that in offences whereof the sentence is beyond seven years the investigating agency should necessarily arrest the accused and produce the accused in custody at the time of filing the charge-sheet under Section 173 Cr.P.C. before the Magistrate has no basis and is contrary to the statutory scheme. In this regard reference may be made to Sections 2(c) 41 41(1)(b) 41(1)(b)(a) 157(1) 173(2)(e) 173(2)(f) 173(2)(g) of the Code which put the matter beyond any doubt that the investigating agency is not obliged to arrest the accused whenever a cognizable offence is registered. The discretion to arrest the accused has to be exercised by the investigating agency by applying the principles laid down in the Code itself. The Metropolitan Magistrate cannot examine whether the discretion of the IO to arrest or not to arrest the accused has been properly exercised. He is only concerned with the chargesheet as filed. He may return the charge-sheet if he finds that the investigation is not complete or the charge is not borne out from the evidence collected and filed with the charge-sheet. But he cannot return the same merely because the accused has not been arrested and produced in custody at the time of filing the charge-sheet. The reference stands answered.

Summary

Issues Involved:
1. Whether a Metropolitan Magistrate can examine the discretion exercised by the Investigating Officer (IO) for arresting or non-arresting the accused persons while considering the charge-sheet at the stage of taking cognizance.
2. Whether the Court of Metropolitan Magistrate can return the charge-sheet for further investigation on the point of arrest of accused persons if it is found that the IO has not exercised his discretion lawfully.

Issue-wise Detailed Analysis:

1. Examination of Discretion by Metropolitan Magistrate:
The High Court addressed whether a Metropolitan Magistrate has the authority to scrutinize the discretion exercised by the IO in arresting or not arresting accused persons during the consideration of the charge-sheet. The Court referred to a previous decision in "Court On Its Own Motion V. Central Bureau of Investigation," where it was established that the police are not required to arrest an individual in every non-bailable and cognizable offence if it is not essential for the investigation. The Court emphasized that the liberty of a citizen is paramount and should not be compromised unless absolutely necessary for the investigation. The Court reiterated that the power to arrest should not be confused with the necessity to arrest, and arrests should be avoided if the investigation can be completed with the cooperation of the accused.

2. Returning the Charge-sheet for Further Investigation:
The Court further examined whether the Metropolitan Magistrate could return the charge-sheet for further investigation if the IO did not arrest the accused. The Court held that the Magistrate could not return the charge-sheet solely because the accused was not arrested. The Court noted that the discretion to arrest lies with the investigating agency, which must apply the principles laid down in the Code of Criminal Procedure (Cr.P.C.). The Court referred to several sections of the Cr.P.C., including Sections 2(c), 41, 41(1)(b), 157(1), 173(2)(e), 173(2)(f), and 173(2)(g), which clarify that the investigating agency is not obliged to arrest the accused whenever a cognizable offence is registered. The Court concluded that the Metropolitan Magistrate's role is to consider the charge-sheet as filed and not to question the IO's discretion regarding arrests.

Conclusion:
The High Court concluded that the Metropolitan Magistrate could not examine the discretion of the IO regarding arrests at the stage of taking cognizance of the charge-sheet. The Magistrate is only concerned with the completeness of the investigation and whether the charge is supported by the evidence collected. The reference was answered accordingly, affirming that the Metropolitan Magistrate cannot return the charge-sheet merely because the accused has not been arrested and produced in custody at the time of filing the charge-sheet.