TaxTMI 
TaxTMI 
2017 (10) TMI 1611
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....nt of arrest of accused persons." 2. The aforesaid question has been framed by the referring Court in the background that the investigating agency, i.e. the Central Bureau of Investigation (CBI) filed the charge-sheet under Section 173, Cr.P.C. without arresting the accused persons, who are alleged to be involved in offence under Sections 420/467/468/471/120-B, IPC. The accused were not arrested by the investigating agency since the investigating agency did not consider it necessary to arrest them, as they cooperated in the investigation. 3. It appears that the referring Court was not satisfied with the fact that the investigating agency had not arrested the accused. According to the referring Court, the accused should have been arrested and the reasons why they should have been arrested, according to the learned Magistrate, are set out as under: • "It encourages accused persons to further indulge in criminal activities with more zeal. • Some of the accused persons (mostly the master minds or king-pins) abscond and they are declared proclaimed offenders (P.O.) but they are rarely traceable due to lack of infrastructure with police agency. â....
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....t 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 disobeyin....
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....nitude and severe punishment this Court feels constrained to give certain directions based on the legal position and several judgments including those delivered by me recently {(i) Suresh V. Chaturvedi v. AES Control Pvt. Ltd., Crl. M. (M) 2970/2003 decided on 24th July, 2003, (ii) Pratap Singh Gaekwadv. State of NCT of Delhi, Crl. M. (M) 1848/2003 decided on 30th October, 2003, (iii) Sudhir Nathani v. Central Bureau of Investigation, Crl. M. (M) 2848/2003 decided on July 24th, 2003) to the police and the investigating agencies as well as to the Courts competent to take cognizance of the offence and try the accused for guidance and compliance. These are: Directions to the Police/Investigating Agencies like CBI, etc.: (1) Investigating Officer, be of police station or special agency like CBI shall not arrest any person accused of having committed a cognizable and non-bailable offence until it is very necessary for the purpose of investigation or custodial interrogation say for recovering incriminating articles or weapons of offence or eliciting information as to his accomplices etc. or for any other purpose that may help in gathering evidence to prove his guilt. ....
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....nvestigating agency like CBI files a chargesheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the chargesheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest. (ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the chargesheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service' of summons upon him. (iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey....
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....ice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being; (d) Bail may be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and (e) Bail may be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. (f) Similarly, the Court shall not while releasing a person on bail put any condition, say in the form of deposit of extra amount or FDR etc. of any amount which is beyond the conditions permissible under Section 439, Cr.PC." 6. The learned Single Judge also observed in the said decision that, time and again, the subordinate Courts have waivered from the well-settled law on the subject. In paragraphs 27 & 28, His Lordship has observed: "27. This Court has laid down aforesaid law in various cases decided from time to time for the guidance and compliance of the subordinate Courts but it is with great anguish and pain that this Court observes that it has come across a large number o....