By:- Haseeb Khan [1]

In the Supreme Court of India

NAME OF THE CASE	Siddharth v. State of U.P.
CITATION	Criminal Appeal No. 838 of 2021
DATE OF JUDGEMENT	August 16, 2021
APPELLANT	Siddharth
RESPONDENT	State of U.P.
BENCH/JUDGE	Justices Sanjay Kishan Kaul and Hrishikesh Roy
STATUTES/CONSTITUTION INVOLVED	Criminal Procedure Code, 1973
IMPORTANT SECTIONS/ARTICLES	Criminal Procedure Code, 1973 — Ss. 170, 41, 41-A, 41-B, 41-C, 41-D, 42, 438 and 468

ABSTRACT

An FIR was filed seven years ago against the petitioner and he was granted interim protection until the filing of the police report. The charge sheet was ready to be filed and the appellant willingly helped the investigation. Section 170(1) of the CrPC provides that, if, upon an investigation, 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 such Magistrate until otherwise directed. In this case, the trial court interpreted Section 170[2] to mean that until the indicted is taken into custody the charge sheet cannot be taken into the record. Therefore, the accused had to apply for anticipatory bail which was rejected by the High Court and the arrest warrant was issued, which led the appellant to approach the Supreme Court.

INTRODUCTION

Anticipatory bails are issued prior to the arrest of a person. It is also called a pre-arrest bail. Anticipatory bail can be granted for a non-bailable offence and will be valid only if the person has no direct connection to the case or when the Court believes that the person is innocent. It solely depends on the circumstances and the gravity of the offence. According to Section 438[3]:

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

• A condition that the person shall make himself available for interrogation by a police officer as and when required;
• A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
• A condition that the person shall not leave India without the previous permission of the Court;
• such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1).

FACTS OF THE CASE

The appellant, along with 83 other private persons, was sought to be roped in a FIR that was registered seven years ago. The appellant claimed to be a supplier of stones for which royalty was paid in advance to these holders and claims not to be involved in the tendering process. A similar person was stated to have been granted interim protection until filing of the police report. It was attested on his behalf that the plaintiff had joined the investigation process, and a charge sheet was also stated to be ready to be filed. However, since an arrest memo was made, the plaintiff decided to approach the High Court seeking anticipatory bail but the High Court rejected the bail plea, following which the appellant approached the Supreme Court. The learned counsel for the respondents submitted that the Trial Court was of the view that unless a person is taken into custody, in the view of Section 170 of CrPC, the charge sheet will not be taken on record.[4]

ISSUES RAISED BEFORE THE COURT

1. Whether the appellant should be granted an anticipatory bail or not?
2. Merely because an arrest can be made lawfully does it mandate that it must be made?

ARGUMENTS FROM THE APPELLANT SIDE

The learned counsel for the appellant stated before the Honorable Supreme Court that the appellant will put the appearance before the court in case of a summons being issued.

ARGUMENTS FROM THE RESPONDENT SIDE

The learned counsel for the respondent stated that the charge sheet is ready to be filed but submitted that the trial court takes a view that unless the person is taken into custody the charge sheet will not be taken on record in view of Section 170 of the Criminal Procedure Code, 1973.

JUDGEMENT

The learned judges cited Section 170 of the CrPC[5], which states: Cases to be sent to Magistrate, when evidence is sufficient. – (1) If, upon investigation, 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 a similar Magistrate on a day fixed and for his attendance from day to day before such Magistrate until differently directed.”

A judicial precedent from the Delhi High Court was also mentioned by the Honorable Court. In Court on its own motion v. Central Bureau of Investigation[6], the Delhi High Court dealt with an argument similar to the contention of the respondent that Section 170 CrPC prevents the trial court from taking a charge sheet on record unless the accused is taken into custody. The word “custody” appearing in this section does not contemplate either police or judicial custody. It merely connotes the presentation of the accused by the Investigating Officer before the Court at the time of the filing of the charge sheet, whereafter the role of the Court starts. Had it not been so the Investigating Officer would not have been vested with powers to release a person on bail in a bailable 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. The Court held that in case the police/Investigating Officer thinks it inessential to present the accused in custody for the reason that accused would neither clear out nor would defy the summons as he has been co-operating in the investigation, the investigation can be completed without arresting him and the Investigating Officer is not obliged to produce such an accused in custody.

The learned special judge was under the misconception that in every non-bailable and cognizable offence, the police were required to arrest a person on every relevant occasion, even if it was not essential for the purpose of investigation, stated the learned judge. In the normal and ordinary course, the police should always avoid arresting a person and transferring 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 needed for the recovery of incriminating articles or weapons of offence or for evoking some information or clue as to his cohorts or any elaborate substantiation, that his arrest may be necessary. Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in-Charge of the Police Station thinks that the presence of the accused will be difficult to bring in because of the grave and serious nature of the crime, as the possibility of his absconding, defying the process or fleeing from justice cannot be ruled out.

The Honorable court observed that contrary to the compliances in Joginder Kumar v. State of U.P. & Ors.[7], how a police officer has to deal with a scenario of arrest, the trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the chargesheet on record in view of the provisions of Section 170 of the CrPC, which is misplaced and contrary. In the present case, when the appellant had joined the investigation and the investigation was completed, he was roped in after seven years of enrollment in the FIR, which makes his arrest unjust before the charge sheet could be put on record. Therefore, the impugned order of the High Court was disregarded by the Supreme Court and the anticipatory bail was granted.

CONCLUSION

This remarkable judgment places the personal liberty of any accused in any given case on the highest pedestal. Article 21 of our Constitution manifestly accords supreme significance of the right to life and individual liberty of citizens. It is not obligatory to take the accused into custody at the time of filing the chargesheet and producing him before the Court in custody. Further, if the indicted is not arrested during the probe, he is to be typically considered entitled to be released on bail as no purpose would be served by denying bail to a person who has not been arrested during the probe. This noteworthy ruling makes it relatively clear that nowhere does Section 170 of the CrPC imposes any obligation of any kind on the officer-in-charge to arrest each and every indicted at the time of filing of the charge sheet which must be abided and stuck to in summation. Simply because an arrest can be made lawfully, it does not dictate that arrest must be made. Individual liberty and character of a person are important aspects of Article 21 of the Indian Constitution. Therefore, a distinction must be made between the power to arrest a person and the justification behind the use of this power.

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[1] Author is 3^rd semester student of Amity Law School, Lucknow.

[2] Criminal Procedure Code, 1973, S. 170, No. 2, Acts of Parliament, 1973 (India).

[3] Criminal Procedure Code, 1973, S. 438, No. 2, Acts of Parliament, 1973 (India).

[4] Indian Kanoon, https://indiankanoon.org/doc/96230971/ (last visited 1 July)

[5] Criminal Procedure Code, 1973, S. 170, No. 2, Acts of Parliament, 1973 (India).

[6] Court on it’s own motion v. Central Bureau of Investigation, 2004 SCC Online (72) DRJ 629.

[7] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.