Arrest is not always a ‘must’, says Supreme Court

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The Supreme Court has held that merely because law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.

“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 Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy said.

A distinction must be made between the existence of the power to arrest and the justification for exercise of it, it noted.

“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,” the court observed in its recent order.

Anticipatory bail plea
The order was passed in a plea for anticipatory bail filed by businessman Siddharth, represented by senior advocate Pramod Kumar Dubey and advocates Ravi Sharma and Rahul Shyam Bhandari. The Allahabad High Court had rejected his bail application in July.

The case concerns an FIR registered against him for allegedly entering into a conspiracy and criminal breach of trust involving former ministers and high-ranking officials in relation to a project initiated by the Uttar Pradesh government in 2007 to build parks and museums, including the Ambedkar Samajik Parivartan Asthal, Kashiram Smarak Asthal Gautambudh Nagar Upvan Echo Park and Noida Ambedkar Park. The FIR alleges a loss of ₹ 14,000 crore to the public exchequer.

Mr. Dubey argued that his client had joined the seven-year-old investigation. There was no need for his custodial interrogation. There was no apprehension that he would abscond or tamper with evidence. The police were in the process of filing a charge sheet.

Wrongly interpreted
Mr. Dubey said Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make arrest of the accused mandatory at the time of filing of the charge sheet. He argued that the word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.

Agreeing with the senior lawyer, the Supreme Court clarified that “the word ‘custody’ appearing in Section 170 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 charge sheet”.

“The trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the charge sheet on record in view of the provisions of Section 170 of the CrPC. We consider such a course misplaced and contrary to the very intent of Section 170 of the CrPC,” the court laid down the law.

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