TMI Blog2004 (1) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... Court rejected CBI contention that provisions of Section 170, Cr.P.C, which requires the Investigating Officer to forward the accused under custody to a Magistrate, did not apply in the present case. The agency charge-sheet accused Rajeshwar Singhal of misappropriating ₹ 23.09 lakh while acting as First Secretary at the Indian High Commission in Tanzania in 1998-2000. The agency has alleged that during his posting at Tanzanian Capital Dar-es-Salaam, Singhal issued visas to the applicants by falsifying the receipts of various categories. Besides being charged under Prevention of Corruption Act for misusing the official position, he was also slapped with charges under Section 409 (Criminal Breach of Trust) of the IPC among others. 2. In the instant matter, case was registered against the accused in February, 2001 and charge-sheet was filed in August, 2003. During this period, the accused was not arrested as CBI did not deem his arrest necessary for investigation. But now learned Special Judge wants CBI to arrest him and has ordered that unless he is produced in custody he would not accept the charge-sheet little realizing that there is prescribed li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and, therefore, whenever the police submit the charge-sheet, it is the duty of the Court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence. 7. Let us first see what is command of Section 173, Cr.P.C. under which charge-sheet is filed and then I shall advert to the provision of Section 170, Cr.P.C. under which the learned Special Judge has returned the charge-sheet. 8. Section 173, Cr.P.C. provides as under : Section 173. (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2)(i) As soon as it is completed, the Officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2). 9. Bare perusal of Section 173, Cr.P.C. shows that whenever a final report under Section 173, Cr.P.C. is filed for consideration by the Magistrate, two situations may arise. First, that the report may conclude that the offence appears to have been committed by a particular person or persons and second, that in the opinion of the Officer-in-charge no offence appears to have been committed. 10. In the first eventuality, that is where the report discloses the commission of an offence, the aforementioned three courses are open to the Magistrate viz. (a) he may accept the report and take cognizance of the offence and issue process; (b) he may disagree with the report and drop the proceedings; (c) he may direct further investigation. 11. In the second eventuality i.e. where the report states that no offence appears to have been com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court. 16. In case the police/Investigating Officer thinks it unnecessary to present the accused in custody for the reason that accused would neither abscond nor would disobey the summons as he has been co-operating in investigation and investigation can be completed without arresting him, the I.O. is not obliged to produce such an accused in custody. 17. Thus, the only meaning of Sub-clause (g) of Sub-section (2)(i) of Section 173, Cr.P.C. whether the accused has been forwarded in custody under Section 170 is with regard to the information that whether the accused is being forwarded under custody or not. Nothing more nothing less. Section 173, Cr.P.C. confines to providing the said information. 18. Thus, at the most the Magistrate, for that purpose the Court empowered to take cognizance has the power to ask the prosecution to provide with further information in respect of Clauses (a) to (g) of Sub-section (2)(i), if these are deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed to deny a person his liberty as it hits at the very foundation of democratic structure. In this regard, I cannot resist the temptation of reproducing the observations made by the Supreme Court in Joginder Kumar v. State of U.P. and Ors., , which are very pithy and have force in law. These are as under: No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided. 24. In this Court everyday ten to twenty matters for quashing the FIRs under Sections 498A/406, IPC are taken up as all marriages end in divorce where relatives of husband or other are sent to jail. Unfortunately, sufferers are young girls between the ages 20 to 28 years. Very few cases end up in full trial and conviction. These are the offences whose deterrence has proved worse than remedy. 25. It was in view of this malady that this Court had strongly recommended to make the offence under Section 498A, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail. (vi) That the Court shall always keep the mandatory provisions of Section 440, Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be excessive amount and take into consideration the financial condition, the nature of offence and other conditions, as Excessive amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less. Principles that govern the grant of refusal of bail in other kinds of cases and shal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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