SC to cops: Don’t arrest merely because you can

NEW DELHI: Don’t arrest people just because you can, or just because you have to file the charge sheet, the Supreme Court has told the police.

Arrests can cause incalculable harm to the reputation and selfesteem of a person, the Supreme Court said, as it implored the police officers not to make the arrest a routine affair just because the law arms them with the power to do so.

“Personal liberty is an important aspect of our constitutional mandate,” emphasised a bench of justices Sanjay Kishan Kaul and Hrishikesh Roy while disapproving of the practice of arresting people in criminal cases even when investigations can be completed without sending the accused to jail. “The occasion to arrest an accused during investigation arises when the custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or the accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made,” it noted.

The court was emphatic that a distinction must be made between existence of the power to arrest and the justification for the exercise of this power.

“If an arrest is made routine, it can cause incalculable harm to reputation and self-esteem of a person. If the IO 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,” underlined the bench.

The court’s observations came while hearing a pre-arrest bail petition of a man, named an accused along with 83 others in a case of cheating and forgery which was registered in Uttar Pradesh in 2014. While he was not arrested during the last seven years, the police moved to arrest him since the charge sheet was to be filed before the court.

The Allahabad high court refused to grant him protection from arrest on July 9, forcing the accused to approach the Supreme Court.

The counsel for the UP government submitted in the top court that the arrest memo was issued since the trial court wanted the accused to be in custody before the charge sheet could be taken on record under Section 170 of the Criminal Procedure Code (CrPC). Section 170 talks of cases where there is sufficient evidence to prosecute the accused and states that police officers shall forward the accused “under custody” to a competent court for trial at the time of filing of the charge sheet.

Rejecting the trial court’s views, the bench said that such a course is “misplaced and contrary to the very intent” of the law since Section 170 of the CrPC does not impose an obligation on the officer-in-charge to arrest each and every accused at the time of filing of the charge sheet.

“We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word ‘custody’ appearing in Section 170 of the CrPC 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 charge sheet,” held the bench.

“It (the law) does not impose an obligation on the Officer-incharge to arrest each and every accused at the time of filing of the charge sheet,” it added.

It pointed out that the legal position has to be made clear since the SC has been regularly coming 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 on the ground that there is an obligation to arrest the accused and produce him before the court.

In the present case, the court set aside the high court order and protected the accused from arrest on the condition that he will keep cooperating with the investigators and will appear before the trial court at the time of filing of the charge sheet.

“When the appellant has joined the investigation, the 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,” it said.

COURT SAYS A DISTINCTION MUST BE MADE BETWEEN THE EXISTENCE OF THE POWER TO ARREST AND THE JUSTIFICATION FOR THE EXERCISE OF THIS POWER