TMI Blog2021 (8) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... nction must be made between the existence of the power to arrest and the justification for exercise of it. In the present case when the appellant has joined the investigation, investigation has completed and he has been roped in after seven years of registration of the FIR we can think of no reason why at this stage he must be arrested before the chargesheet is taken on record - the learned counsel for the appellant has already stated that on summons being issued the appellant will put the appearance before the trial court. Appeal allowed. - CRIMINAL APPEAL NO.838 OF 2021 (Arising out of SLP(Crl.) No.5442/2021) - - - Dated:- 16-8-2021 - SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ. For Petitioner(s) : Mr. P. K. Dube, Sr. Adv., M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.P.C. In order to appreciate the controversy we reproduce the provision of Section 170 of Cr.P.C. as under: 170. Cases to be sent to Magistrate, when evidence is sufficient. (1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that 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 recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er they were released on bail. Therefore, as the Court refused to accept the charge-sheet unless all the accused are produced, the charge-sheet could not be submitted, and ultimately also, by a specific letter, it seems from the record, the charge-sheet was submitted without accused Nos. 4 and 5. This is very clear from the evidence on record. [ ] 8. I must say at this stage that the refusal by criminal Courts either through the learned Magistrate or through their office staff to accept the charge-sheet without production of the accused persons is not justified by any provision of law. Therefore, it should be impressed upon all the Courts that they should accept the charge-sheet whenever it is produced by the police with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cr.P.C. 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 chargesheet. 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 distinction must be made between the existence of the power to arrest and the justification for exercise of it. [Joginder Kumar v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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