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TMI Blog2017 (10) TMI 1611X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(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. X X X X Extracts X X X X X X X X Extracts X X X X ..... persons either die or attain age of 70-80 years and files various medical certificate (with natural or artificial diseases) and this way, they escape the required punishment. * It is also observed that whenever such matters are investigated by the local police i.e. Delhi Police, the accused persons are mostly arrested not only in cheating cases but also in all small cases of theft or possession of stolen gas cylinder, electric motor, mobile phone, vehicles, etc. But when the matter is investigated by the CBI, such white collar criminals committing very serious offences of cheating and embezzlement of crores of rupees enjoy the liberty throughout their lives. * Although under law, all criminal are equal but the above scenario shows different approach for rich and poor criminals. * The above phenomenon shows different approach being adopted by two different agencies despite the fact that both are following the same criminal investigation system as provided in Cr.P.C." 4. The question of law referred for consideration of this Court by the learned Magistrate has been settled by a learned Single Judge of this Court in Court On Its Own Motion V. Central Bureau of Investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrested. No authority howsoever powerful or mighty can be allowed to deny a person his liberty as it hits at the very foundation of democratic structure. In this regard, I cannot resist the temptation of reproducing the observations made by the Supreme Court in Joginder Kumar v. State of U.P., 1994 (SLT Soft) 445 : (1994) 4 SCC 260 which are very pithy and have force in law. These are as under: "No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided. 24. In this Court everyday ten to twenty matters for quashing the FIRs under Sections 498A/406, IPC are taken up as all marriages end in divorce where relatives of husband or other are sent to jail. Unfortunately, sufferers are young girls between the ages 20 to 28 years. Very few cases end up in full trial and conviction. These are the offences whose deterrence has proved worse than remedy. 25. It was in view of this malady that this Court had strongly recommended to make the offence under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation; to send him to jail by refusing bail suddenly, merely because chargesheet has been filed is against the basic principles governing grant or refusal of bail. (vi) That the Court shall always keep the mandatory provisions of Section 440, Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be "excessive" amount and take into consideration the financial condition, the nature of offence and other conditions, as "Excessive" amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less. Principles that govern the grant of refusal of bail in other kinds of cases and shall be followed in letter and sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c structure of the country, rule of law and concept of liberty of citizens will be the first casualty." 7. Pertinently, after the aforesaid decision was rendered by the learned Single Judge in the year 2004, the Supreme Court laid down the principles in relation to arrest of accused in Arnesh Kumar v. State of Bihar & Another, II (2014) DMC 546 (SC) : 210 (2014) DLT 599 (SC) : V (2014) SLT 582 : III (2014) DLT (Crl.) 151 (SC) : (2014) 8 SCC 273, in relation to offences, the sentence wherefore can run up to seven years. 8. 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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