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Showing contexts for: section 170 criminal procedure code in Smt. Bacchi Devi vs State Of U.P. And Another on 12 August, 2025Matching Fragments
30.4 This judicial insistence on custody is often based on an erroneous interpretation of Section 170 Cr.P.C. (corresponding section 190 of BNSS), which states that the police shall forward the accused "in custody" along with the charge-sheet. Trial courts and police have frequently misread this as requiring physical custody, disregarding the liberty-centric mandate of Article 21 of the constitution.
31. In Siddharth v. State of U.P. (supra), the police had completed the investigation and were ready to file a charge-sheet. However, they insisted that the accused be arrested and produced before the Magistrate for the charge-sheet to be formally taken on record. The accused approached the Supreme Court challenging this insistence, and the court held through a progressive and practical interpretation of the law that personal liberty is an important aspect of the constitutional mandate. The occasion to arrest an accused during investigation arises when a custodial investigation becomes necessary, or when the crime is heinous, or when there is a possibility of influencing the witnesses, or the accused may abscond. A distinction must be made between the existence of the power to arrest and the justification for the exercise of it17. There is no need to send an accused to judicial custody at the stage of 170 Cr.P.C., especially in cases where the police themselves saw no reason to arrest during the investigation. By cautioning against ritualistic arrest practices, the Supreme Court has once again highlighted the need for rational, liberty-conscious criminal procedure, in tune with constitutional mandates and the evolving ethos of human rights.
31.1 The Supreme Court decisively addressed this misinterpretation in Siddharth (supra) by holding that: (i) custody in Section 170 Cr.P.C. does not mean arrest. It only means presentation of the accused before the court to take cognisance, (ii) if the police never found the need to arrest the accused during investigation and the accused has cooperated throughout, there is no justification for arrest merely to take cognizance or file the charge-sheet, and (iii) liberty cannot be sacrificed on the altar of procedural formality. This ruling marked a pivotal moment, as it acknowledged that a bail bond or undertaking is sufficient to secure the accused's presence, obviating the need for anticipatory or regular bail in such circumstances.
9. We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 CrPC that it 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 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/she is not required to be produced in custody. The word "custody" appearing in Section 170 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.
11. We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar case30 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 prerequisite formality to take the charge-sheet on record in view of the provisions of Section 170 Cr.P.C. We consider such a course misplaced and contrary to the very intent of Section 170 Cr.P.C."
46. Section 204 of the Code speaks of issue of process while commencing the proceeding before the Magistrate. Sub-section (1)(b) gives a discretion to a Magistrate qua a warrant case, either to issue a warrant or a summons. As this provision gives a discretion, and being procedural in nature, it is to be exercised as a matter of course by following the prescription of Section 88 of the Code. Thus, issuing a warrant may be an exception in which case the Magistrate will have to give reasons.