The Hindu : High Court issues directions for making arrests

Online edition of India's National Newspaper
Thursday, Jan 29, 2004

New Delhi

New Delhi

High Court issues directions for making arrests

By Our Staff Reporter

NEW DELHI, JAN. 28. The Delhi High Court today issued a slew of directions to investigating agencies and trial courts here describing the circumstances and offences for making arrests in criminal cases.

Setting aside an order by the Special Judge for CBI cases, Prem Kumar, where Mr. Kumar had returned a charge-sheet filed by the agency on the ground that the latter had not taken the accused into custody, Justice J.D. Kapoor, said: "An investigating officer, whether of police or of a special agency like the Central Bureau of Investigation (CBI), shall not arrest any person accused of having committed a cognisable or non-cognisable offence until it is very necessary for the purpose of investigation or custodial interrogation... .''

"Arrests should always be avoided if the investigation can be completed otherwise and the accused gives full co-operation in concluding the probe,'' Mr. Justice Kapoor said.

Mr. Kumar had on September 15 asked the CBI to arrest a former First Secretary in the Indian High Commission in Tanzania in a forgery-cum corruption case of 2000. Rejecting the charge-sheet filed in the matter by the agency against Rajeshwar Singhal, who had been sent to the Central Excise Department as a Joint Secretary on the end of his deputation in the High Commission, Mr. Kumar had directed the agency to take the accused into custody before charge-sheeting him.

The agency had charge-sheeted the official under Sections 420 (cheating) and 468 (forgery) of the Indian Penal Code (IPC) and certain Sections of the Prevention of Corruption Act.

The agency had tried to justify non-arrest of the official on the ground that investigation in the matter had been completed and that there was no apprehension of Singhal fleeing from justice.

However, Mr. Kumar had rejected the plea saying that Section 173 of the Criminal Penal Code makes it mandatory that at the time of filing of a charge-sheet, the accused concerned must be taken into custody and produced before the court concerned.

Mr. Justice Kapoor had taken suo motu notice of Mr. Kumar's order saying that prima facie illegality was writ large.

As for the trial courts, Mr. Justice Kapoor asked that when an investigating agency files a charge-sheet without arresting accused persons during investigation and does not produce the accused in custody as referred in Section 170 CrPC, the Magistrate or the court empowered shall accept the charge-sheet forthwith and procced according to the procedure... .''

"In such a case, the Magistrate or courts shall invariably issue a process of summons, not arrest warrants,'' Mr. Justice Kapoor said.

He further directed that on appearance of an accused in a non-bailable offence, who had neither been arrested by the investigating agency during investigation nor had been produced in custody, the court would release him on bail as the circumstances of his having not been arrested during investigation or not being produced in custody was itself sufficient to entitle him to be released on bail.

Giving a reason for this direction, Mr. Justice Kapoor said: "If a person has been at large for several years, and has not been arrested during investigation, to send him to jail by refusing bail suddenly merely on the ground that the charge-sheet has been filed is against the basic principles governing grant or refusal of bail.''

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