Supreme Court to Police: Don’t arrest merely because you can; Personal liberty important aspect of constitutional mandate

THE Supreme Court Monday said personal liberty was an important aspect of the constitutional mandate and merely because an arrest can be made because it is lawful does not mean that it must be made.

Stressing the distinction between the power to arrest and the justification for making the arrest, a bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy said, "A distinction must be made between the existence of the power to arrest and the justification for the exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person."

"If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused," the bench added, while also disapproving the practice of trial courts of insisting on the arrest of an accused as a pre-requisite to taking the charge sheet on record in view of Section 170 of the CrPC.

The top court was hearing a plea against a judgment of the Allahabad High Court which had rejected the anticipatory bail plea of the accused. The charge sheet against the accused was ready to be filed but the trial court took a view that unless the person was taken into custody, the charge sheet would not be taken on record because of Section 170 of the CrPC.

Clarifying the law, the apex court said Section 170 of the CrPC does not impose an obligation on the officer-in-charge to arrest every accused at the time of filing of the charge sheet.

"We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge sheet being filed, non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he or she is not required to be produced in custody," the top court held.

It added the word "custody" appearing in Section 170 of the Cr.P.C. did not contemplate either police or judicial custody; it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the charge sheet.

Noting that in the present case, the accused had joined the investigation that had been completed, and he has been roped in after seven years of the registration of an FIR, the court said there was no reason to arrest him before the charge sheet was taken on record.