The Weekly Obiter

METROPOLITAN MAGISTRATE CANNOT EXAMINE WHETHER THE DISCRETION OF THE IO TO ARREST, OR NOT TO ARREST THE ACCUSED, HAS BEEN PROPERLY EXER-CISED : DELHI HIGH COURT: OCTOBER 27, 2017

November 14, 2017

The Hon’ble Delhi High Court in the matter bearing Crl Ref No. 4/2017 titled as ‘Court on its Own Motion Versus State, dealt with the question of law that; “Whether a Metropolitan Magistrate can examine the discretion exercised by the IO for arresting or non-arresting the accused persons, while considering the charge-sheet at the stage of taking of cognizance and if it is found that the IO has not exercised his discretion lawfully, whether the court of MM can return the charge-sheet for further investigation on the point of arrest of accused persons.”
That the aforesaid question has been framed by the referring Court in the background that the investigating agency, i.e. the Central Bureau of Investigation (CBI) filed the charge-sheet under Section 173 Cr.P.C. without arresting the accused persons, who are alleged to be involved in offence under Sections 420/ 467/ 468/ 471/ 120-B IPC. The accused were not arrested by the investigating agency since the investigating agency did not consider it necessary to arrest them, as they cooperated in the investigation.
The Hon’ble Court while answering the reference, held that the view taken by the learned Magistrate that in offences, whereof the sentence is beyond seven years, the investigating agency should necessarily arrest the accused and produce the accused in custody at the time of filing the charge-sheet under Section 173 Cr.P.C. before the Magistrate, has no basis and is contrary to the statutory scheme. In this regard, reference may be made to Sections 2(c), 41, 41(1)(b), 41(1)(b)(a), 157(1), 173(2)(e), 173(2)(f) & 173(2)(g) of the Code, which put the matter beyond any doubt that the investigating agency is not obliged to arrest the accused whenever a cognizable offence is registered. The discretion to arrest the accused has to be exercised by the investigating agency by applying the principles laid down in the Code itself. The Hon’ble Court while reiterating the position in Udit Raj Poonia Vs. State (Govt. of NCT of Delhi), 2017 SCC Online Del 6997 : (2017) 238 DLT 212; as also in Rajesh Dua Vs. State, Bail Application No.778/2017 decided on 09.08.2017, held that , the Metropolitan Magistrate cannot examine whether the discretion of the IO to arrest, or not to arrest the accused, has been properly exercised. He is only concerned with the charge-sheet, as filed. He may return the charge-sheet if he finds that the investigation is not complete, or the charge is not borne out from the evidence collected and filed with the charge-sheet. But he cannot return the same merely because the accused has not been arrested and produced in custody at the time of filing the charge-sheet.
 

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