The Supreme Court observed if an arrest is made routine, it can cause “incalculable harm” to the reputation and self-esteem of a person as it emphasized that it is not mandatory to take the accused in custody at the time of filing a charge sheet.
A bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy said: “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 bench emphasised if trial courts were to insist on the arrest of an accused as pre-requisite formality to take the charge sheet on record in view of the provisions of Section 170 of the Criminal Procedure Code (CrPC), then “we consider such a course misplaced and contrary to the very intent of Section 170 of the CrPC”.
It stressed that personal liberty is an important aspect of the 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,” it noted.
The bench pointed out 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. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person,” it added.
Dealing with Section 170 of the CrPC, the court said the word “custody” appearing there does not contemplate either police or judicial custody, instead it merely connotes the presentation of the accused by the investigating officer before the court while filing the charge sheet.
The top court passed the order on an appeal filed by Siddharth challenging the arrest memo issued against him in an FIR lodged seven years ago in Uttar Pradesh.
The bench said in this case, the appellant has joined the investigation, investigation has been 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 charge sheet is taken on record,” said the bench.