2021 (8) TMI 977 - SC - Indian Laws

Grant of anticipatory Bail - appellant had already joined the investigation before approaching this Court and the chargesheet was stated to be ready to be filed - Section 170 of the Cr.P.C. - HELD THAT - 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. 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 - the learned counsel for the appellant has already stated that on summons being issued the appellant will put the appearance before the trial court. Appeal allowed.

Summary

Issues involved:
Whether anticipatory bail application should have been allowed.

Analysis:
The Supreme Court granted interim protection to the appellant pending the decision on his anticipatory bail application. The appellant, along with 83 others, was implicated in an FIR filed seven years ago. The appellant claimed innocence, stating that he was a stone supplier who had paid royalty in advance and was not involved in the tendering process. Despite joining the investigation voluntarily, an arrest memo was issued, prompting the appellant to approach the Court.

The respondent argued that the trial court required the accused to be taken into custody before accepting the chargesheet under Section 170 of the Cr.P.C. However, judicial precedents from the Delhi High Court clarified that custody under Section 170 did not necessarily mean police or judicial custody. The Investigating Officer has the discretion to decide whether to present the accused in custody based on the investigation's requirements.

The Delhi High Court and other High Courts have held that the absence of an accused's custody should not prevent the court from accepting a chargesheet. The Supreme Court concurred with this view, emphasizing that personal liberty is a crucial constitutional right. Arrest during investigation should only occur when necessary, such as in heinous crimes or to prevent witness tampering or absconding.

The Court criticized the trial courts' insistence on arrest as a formality before accepting a chargesheet, stating it contradicted the purpose of Section 170 of the Cr.P.C. In the present case, where the appellant cooperated with the investigation and had no history of absconding, the Court found no justification for his arrest before filing the chargesheet. The appeal was allowed, setting aside the impugned order, with each party bearing their own costs.