Friday 9 February 2024

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

 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.





(Arising out of SLP(Crl.) No.5442/2021)


Dated: AUGUST 16, 2021.

Leave granted.

The short issue before us is whether the

anticipatory bail application of the appellant

ought to have been allowed. We may note that as

per the Order dated 02.8.2021 we had granted

interim protection.

The fact which emerges is that the appellant

along with 83 other private persons were sought to

be roped in a FIR which was registered seven years

ago. The appellant claims to be supplier of stone

for which royalty was paid in advance to these

holders and claims not to be involved in the

tendering process. Similar person was stated to

have been granted interim protection until filing

of the police report. The appellant had already

joined the investigation before approaching this

Court and the chargesheet was stated to be ready

to be filed. However, the reason to approach this

Court was on account of arrest memo having been


It is not disputed before us by learned

counsel for the respondent that the chargesheet is

ready to be filed but submits that the trial court

takes 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.

In order to appreciate the controversy we

reproduce the provision of Section 170 of Cr.P.C.

as under:

“170. Cases to be sent to Magistrate, when

evidence is sufficient. – (1) If, upon an

investigation under this Chapter, it appears

to the officer in charge of the police

station that there is sufficient evidence or

reasonable ground as aforesaid, such officer

shall forward the accused under custody to a

Magistrate empowered to take cognizance of

the offence upon a police report and to try

the accused or commit him for trial, or, if

the offence is bailable and the accused is

able to give security, shall take security

from him for his appearance before such

Magistrate on a day fixed and for his

attendance from day to day before such

Magistrate until otherwise directed.”

There are judicial precedents available on

the interpretation of the aforesaid provision

albeit the Delhi High Court.

In Court on its own motion v. Central Bureau

of Investigation1, the Delhi High Court dealt with

an argument similar to the contention of the

respondent that Section 170 Cr.P.C. prevents the

trial court from taking a chargesheet on record

unless the accused is taken into custody. The

relevant extracts are as under:

“15. Word “custody” appearing in this Section

does not contemplate either police or

judicial custody. It merely connotes the

presentation of accused by the Investigating

Officer before the Court at the time of

filing of the chargesheet whereafter the role

of the Court starts. Had it not been so the

Investigating Officer would not have been

vested with powers to release a person on

bail in a bailable offence after finding that

there was sufficient evidence to put the

accused on trial and it would have been

obligatory upon him to produce such an

accused in custody before the Magistrate for

being released on bail by the Court.

1 2004 (72) DRJ 629

16. 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 IO is not obliged to

produce such an accused in custody.


19. It appears that the learned Special Judge

was labouring under a misconception that in

every non-bailable and cognizable offence the

police is required to invariably arrest a

person, even if it is not essential for the

purpose of investigation.

20. 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.”

In a subsequent judgment the Division Bench

of the Delhi High Court in Court on its own Motion

v. State2 relied on these observations in Re Court

on its own Motion (supra) and observed that it is

not essential in every case involving a cognizable

and non-bailable offence that an accused be taken

into custody when the chargesheet/final report is


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.

In Deendayal Kishanchand & Ors. v. State of

Gujarat3, the High Court observed as under:

“2.…It was the case of the prosecution that

two accused, i. e. present petitioners Nos. 4

and 5, who are ladies, were not available to

be produced before the Court along with the

charge-sheet, even though earlier they were

released on bail. Therefore, as the Court

refused to accept the charge-sheet unless all

the accused are produced, the charge-sheet

could not be submitted, and ultimately also,

by a specific letter, it seems from the

record, the charge-sheet was submitted

2 (2018) 254 DLT 641 (DB)

3 1983 Crl.LJ 1583

without accused Nos. 4 and 5. This is very

clear from the evidence on record. […]

… … … … … …

8. I must say at this stage that the refusal

by criminal Courts either through the learned

Magistrate or through their office staff to

accept the charge-sheet without production of

the accused persons is not justified by any

provision of law. Therefore, it should be

impressed upon all the Courts that they

should accept the charge-sheet whenever it is

produced by the police with any endorsement

to be made on the charge-sheet by the staff

or the Magistrate pertaining to any omission

or requirement in the charge-sheet. But when

the police submit the charge-sheet, it is the

duty of the Court to accept it especially in

view of the provisions of Section 468 of the

Code which creates a limitation of taking

cognizance of offence. Likewise, police

authorities also should impress on all police

officers that if charge-sheet is not accepted

for any such reason, then attention of the

Sessions Judge should be drawn to these facts

and get suitable orders so that such

difficulties would not arise henceforth.”

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.

We may note that personal liberty is an

important aspect of our constitutional mandate.

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. Joginder Kumar v. State of UP & Ors.

 (1994) 4 SCC 260 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.

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. We

may note that learned counsel for the appellant

has already stated before us that on summons

being issued the appellant will put the

appearance before the trial court.

We accordingly set aside the impugned order

and allow the appeal in terms aforesaid leaving

the parties to bear their own costs.






AUGUST 16, 2021.

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