The Supreme Court has held that “merely because an arrest can be made because it is lawful does not mandate that arrest must be made,” while stating section 170 CrPC does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet. (Siddharth v. State of Uttar Pradesh)
This is an important order as regards interpretation of Section 170 of the Code of Criminal Procedure (the Code).
The bench of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy gave sanction to the position of law as decided by the High Courts, that it was not essential for the Investigating Officer to arrest each accused before the trial court could take the chargesheet on record.
The order was passed in an appeal challenging the order of the Allahabad High Court, Lucknow Bench which had denied the anticipatory bail application of an accused on the ground that as per the prosecution case, there was a huge amount of revenue loss and that the investigating officer had issued direction to effectuate arrest.
The case pertains to corruption and irregularities committed in connection to supply of sand stone in construction work of memorials and parks by the government of Uttar Pradesh from 2007 to 2011. The applicant in the present case was a stone supplier to U.P. Rajkiya Nirman Ltd.
The applicant has been implicated in an FIR lodged in Gomti Nagar Police Station of Lucknow, pertaining to criminal breach of trust, conspiracy for the same (Sections 409 and 120B of the Indian Penal Code, 1860), and criminal misconduct by a public servant (section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988).
In 2013, an inquiry was conducted by Lokayukt, Uttar Pradesh assisted by the Economic Offences Wing. Subsequently, an FIR was registered. In the FIR, 19 persons have been named including Ex-ministers Nasimuddin Siddiqui, Babu Singh Kushwaha, top officials such as Ex-Joint Director & Advisor, Directorate of Mines, Ex-Director U.P. Rajkiya NirmanNigam, apart from various other Project Managers of the Nigam. Further, during the course of the long drawninvestigation numerous others were also roped in, one of whom was the appellant in this case.
The bail applicant had made a statement to the investigating officer that on the recommendation of the then Officials, the Consortium of lease holders was constituted and that he was only supplier of stone for which the royalty was paid in advance to the lease holders. Further that he was not involved in the tendering process and has submitted all documents to the IO and his statement has also been recorded. He wasapprehending arrest as the IO had directed his arrest for which the police had come to his house on 05.05.2021.
It was also the case of the applicant that similarly situated persons had filed a writ petition for quashing of the FIR in which interim protection was given to them that they may not be arrested till filing of the charge sheet. It was also contended that the applicant had provided stone worth Rs. 90 lakhs and only Rs. 27 Lakhs were paid and due to the pendency of the criminal case, the payment has been stopped.
It was also submitted on his behalf that he does not have a chance of absconding and after 7 years of the alleged FIR, no charge sheet has been filed against him. Further in the counter affidavit, the state has not provided reasons for arrest.
The Ld. AGA for the State made a submission that Rs. 4276, 83,83,43/- (Rs. Forty Two billion Seventy Six crore, Eighty Three lacs and Forty Three Thousand) was allocated by the state which was misused and 34% of the total expenditure was taken away by the accused persons of whom the bail applicant was one. Therefore, the anticipatory bail application should be rejected. The High Court noting that the huge amount of revenue loss and the fact that the IO had ordered his arrest, dismissed the anticipatory bail application.
Against this order, the applicant moved the Supreme Court via Special Leave.
On 16th August the Supreme Court granted leave and disposed off the matter by setting aside the order of the High Court denying anticipatory bail application to the stone supplier. Earlier, on 2nd August it had granted him interim protection from arrest.
The Supreme Court noted that the applicant as one of 83 private persons who were roped in the FIR. The factors that weighed in favor of the appellant were as follows:1. The appellant had joined the investigation 2. Chargesheet was ready to be filed.3. The main reason of denial was the issuance of arrest memo4. The investigation was complete and he had been implicated after seven years of registration of FIR5. The appellant stated before their Lordships that he would appear before the trial court on summons.
The question raised before the Supreme Court required an interpretation of Section 170 of the Code. The stand taken by the State was that the trial court had taken a view that chargesheet would not be taken into consideration unless the accused was in custody.
Relying of the judgment of the Delhi High Court in Court on its own motion v. Central Bureau of Investigation (2004), whereby the contention of CBI that Section 170 prevents the trial court from taking chargesheet on record unless the accused is taken in custody was rejected based on a wider interpretation of the term ‘custody’ as it held that the term ‘custody’ appearing in this section did not contemplate either police or judicial custody and only contemplated the presentation of the accused by the IO before the Court at the time of filing of chargesheet. Further, the IO was not obliged to present the accused if it was his opinion that the accused would neither abscond nor disobey the summons. The High Court in para 20 went on to state that “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 recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary.”
The Supreme Court gave its authoritative approval to the position of law that it is not essential in every case involving a cognizable and non-bailable offence that an accused be taken into custody when the chargesheet/final report is filed. In this case it is held that section 170 of the Code does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet.
This order is a reaffirmation of personal liberty and provides for removing a misconceived notion amongst many trial courts that before they take cognizance of the chargesheet, the accused needs to be in custody and produced before the Court. The Supreme Court held that “merely because an arrest can be made because it is lawful does not mandate that arrest must be made”. It reiterated the position in Joginder Kumar v. State of Uttar Pradesh (1994) that a distinction must be made between the existence of the power to arrest and the justification for exercise of it.
The Investigating Officer is given the discretion to form an opinion as to whether the accused is likely to abscond or evade the summons. The principal objective of keeping a person in custody is to ensure his cooperation in investigation and his presence at the time of trial. If these two situations are taken care off without imposing undue fetters on the personal liberty of the accused, then the concept of ‘innocent unless proven guilty’ would be realized in its true spirit.
The Supreme Court noted that the factual matrix of this case was such that the trial court was insisting on arrest as a pre-requisite formality. It held that this defeats the very intent of section 170 of the Code. Therefore, allowing the appeal, the Supreme Court set a precedent for the trial courts to not keep the trial pending on a strict interpretation of technical grounds
To conclude perhaps the words of Justice V.R. Krishna Iyer in Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh (1977) may be recalled. His Lordship famously said that “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”.
It is to the credit of the Supreme Court that as the final interpreter of the law, it has time and again tried to make procedure subservient to the substantive law, in effect making it the often repeated ‘servant of justice’ and not a tyrant.
Read order here;SIDDHARTH-Order_16-Aug-2021