Magistrate while accepting chargesheet has to invariably issue summons and not arrest warrant

Magistrate while accepting chargesheet has to invariably issue summons and not arrest warrant

Aman Preet Singh Vs CBI

Supreme Court

02/09/2021

CRIMINAL APPEAL NO. 929 OF 2021

About/from the judgment:

"If a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail."

The Supreme Court observed that, while accepting charge-sheet, the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest.

The bench also observed that, if an accused in a non-bailable offence has been enlarged and free for many years and has not even been arrested during investigation, it would be contrary to the governing principles for grant of bail to suddenly direct his arrest merely because charge sheet has been filed.

In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him, the court observed.

In this case, the Chief Judicial Magistrate (CBI), Bhubaneshwar, in his order, observed that since the accused persons had been charge sheeted for Economic offences, it was appropriate to issue non-bailable warrants of arrest against the accused.

While considering this case, the Supreme Court, at the outset, observed that this is one more case based on a misconception and misunderstanding of Section 170,Cr.P.C.

Then it noticed the observations made by the Delhi High Court in Court on its own Motion vs. Central Bureau of Investigation (2004) 72 DRJ 629. In the said case, the High Court had observed. Following directions were issued:

1-> Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.

2-> In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.

3-> Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to nonappearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.

4-> That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.

5-> The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.

The court, taking notice of this, observed that these directions are the guiding principle for a Magistrate while exercising powers under Section 170, Cr.P.C. The court said:

"The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in Sub-para (iii) above by the High Court are in the nature of caution.

Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) 8 of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this"


While disposing the appeal, the court said that it will be appropriate for the High Courts to circulate the judgments passed in Siddharth vs. State of Uttar Pradesh & Anr. and the present one the trial Courts. The problem appear to be endemic, the court said.

In Siddharth, it was held that Section 170 of the Cr.P.C. 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. It was observed that the practice of some Trial Courts of insisting on the arrest of an accused as a pre-requisite formality to take the charge-sheet on record is misplaced and contrary to the very intent of Section 170 of the Criminal Procedure Code.

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