Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2017 (10) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (10) TMI 1611 - HC - Indian LawsJurisdiction - power of Metropolitan Magistrate (MM) - accused not arrested by investigating agency - authoritative determination - Whether a MM can examine the discretion exercised by the IO for arresting or non-arresting the accused persons, while considering the charge-sheet at the stage of taking of cognizance and if it is found that the IO has not exercised his discretion lawfully, whether the Court of MM can return the charge-sheet for further investigation on the point of arrest of accused persons? HELD THAT:- The view taken by the learned Magistrate that in offences, whereof the sentence is beyond seven years, the investigating agency should necessarily arrest the accused and produce the accused in custody at the time of filing the charge-sheet under Section 173, Cr.P.C. before the Magistrate, has no basis and is contrary to the statutory scheme. In this regard, reference may be made to Sections 2(c), 41, 41(1)(b), 41(1)(b)(a), 157(1), 173(2)(e), 173(2)(f) & 173(2)(g) of the Code, which put the matter beyond any doubt that the investigating agency is not obliged to arrest the accused whenever a cognizable offence is registered. The discretion to arrest the accused has to be exercised by the investigating agency by applying the principles laid down in the Code itself. The Metropolitan Magistrate cannot examine whether the discretion of the IO to arrest, or not to arrest the accused, has been properly exercised. He is only concerned with the chargesheet, as filed. He may return the charge-sheet if he finds that the investigation is not complete, or the charge is not borne out from the evidence collected and filed with the charge-sheet. But he cannot return the same merely because the accused has not been arrested and produced in custody at the time of filing the charge-sheet. The reference stands answered.
|