2021 (8) TMI 977 - SC - Indian Laws

Supreme Court Protects Personal Liberty, Criticizes Arrest Formality, Allows Appeal

The Supreme Court granted interim protection to the appellant pending the decision on his anticipatory bail application. The Court emphasized that ... Interpretation of Section 170 of the Cr.P.C. - acceptance of chargesheet without production of the accused - custody in Section 170 does not necessarily mean physical police or judicial custody - distinction between power to arrest and justification for arrest - personal liberty and avoidance of routine arrestsInterpretation of Section 170 of the Cr.P.C. - acceptance of chargesheet without production of the accused - custody in Section 170 does not necessarily mean physical police or judicial custody - Whether the trial court could refuse to take the chargesheet on record on the ground that the accused had not been arrested and produced in custody under Section 170 Cr.P.C., and whether the appellant's anticipatory protection should be continued. - HELD THAT: - The Court held that Section 170 Cr.P.C. does not impose an absolute obligation on the officer in charge to arrest every accused at the time of filing the chargesheet or to present the accused in physical custody as a precondition for the court to accept the chargesheet. The word 'custody' in Section 170 is construed as signifying presentation of the accused by the investigating officer to the court in the procedure of initiating judicial proceedings, and does not invariably contemplate police or judicial custody. The Court agreed with precedents of High Courts which rejected the proposition that a trial court may refuse to accept a chargesheet merely because an accused has not been arrested or produced in custody. Arrest during investigation is warranted only when custodial interrogation is necessary, there is risk of absconding, witness tampering, or other exigencies; the mere existence of power to arrest does not require that arrest be routinely exercised. The Court relied on the principle that personal liberty must not be imperilled by routine arrests and noted Joginder Kumar v. State of UP & Ors. for the distinction between power and justification to arrest. Applying these principles to the facts - where the appellant had cooperated, joined investigation, the chargesheet was ready to be filed after seven years of FIR registration, and the appellant undertook to appear on summons - the Court found no justification for requiring arrest as a precondition to taking the chargesheet on record and continued interim protection, setting aside the impugned order.Impugned order set aside; anticipatory protection continued and appeal allowed on the stated terms.Final Conclusion: The Supreme Court held that trial courts cannot refuse to accept a chargesheet solely because the accused was not arrested or produced in custody; arrest is not a mandatory precondition under Section 170 Cr.P.C. where custodial necessity is absent, and accordingly set aside the order and granted relief to the appellant, leaving parties to bear their own costs. 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.