No arrest is mandated as per Sec 170 CrPC before chargesheet is taken on record: Supreme Court

Read order: Siddharth vs. State of UP & Anr

Pankaj Bajpai

New Delhi, August 19, 2021: The Supreme Court has ruled that insisting on the arrest of an accused as a pre-requisite formality to take the chargesheet on record, is contrary to the very intent of Section 170 of the Code of Criminal Procedure (CrPC). 

While noticing that the appellant has been roped in after seven years of registration of the FIR, a Division Bench of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy observed that there is no reason for arrest of the appellant before the chargesheet is taken on record.

“We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar vs. State of UP & Ors [(1994) 4 SCC 260] case, 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 Cr.P.C. We consider such a course misplaced and contrary to the very intent of Section 170 of the Cr.P.C,” said the Bench.

The Apex Court made it clear that 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 chargesheet.

As per the background of the case, an FIR was registered against the appellant and 83 other persons for entering into a conspiracy and criminal breach of trust committed by former ministers and high-ranking officials in the State of UP for their involvement in a project initiated by the State Government in the year 2007 to build parks and museums which allegedly caused a loss of Rs. 14,000 crores to the exchequer.

It was claimed that although the appellant being the supplier of sandstone had made a total supply worth Rs 90 lakh, he had received an amount of only Rs 26 lakh. 

Counsel for the appellant argued that the investigation was ongoing for the past seven years and there was no need for custodial interrogation of the accused, as he was a mere supplier with no connection with the alleged crime. 

On the other hand, the counsel for the State opposed the plea arguing that custodial interrogation of the accused was necessary and Section 170 obligates the police to take the accused into custody before presentation of chargesheet.

The Apex Court noted that the Division Bench of the Delhi High Court in Court on its own Motion v. State [254 (2018) DLT 641], had ruled 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.

The Top Court found that other High Courts apparently have also followed suit on the proposition that criminal courts cannot refuse to accept a chargesheet simply because the accused has not been arrested and produced before the court.

Therefore, while giving imprimatur to the judicial view, the Top Court said that 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 chargesheet.

“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,” opined the Top Court. 

Therefore, the Supreme Court allowed the appeal and concluded that merely because an arrest can be made because it is lawful, does not mandate that the arrest must be made.