The Word “Custody” Appearing In Section 170 Of Cr.P.C. Does Not Contemplate Either Police or Judicial Custody: Supreme Court

1. Does Section 170 of Cr.P.C. impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet?
2. Does Section 170 Cr. P.C mandate the police to take the accused into custody before presentation of charge-sheet? 
3. Is the police required to invariably arrest a person, even if it is not essential for the purpose of investigation?

Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy addressed interesting questions around the interpretation of Section 170 Cr.P.C. 

For the uninitiated, Section 170 of Cr.P.C. deals with cases to be sent to Magistrate, when evidence is sufficient. 

Petitioner approached Supreme Court seeking anticipatory bail after dismissal of anticipatory bail by the Allahabad HC

In the instant case, the Supreme Court was hearing an appeal against a Allahabad High Court judgement which had denied anticipatory bail to the petitioner (Siddharth).

FIR was registered against the appellant for entering into a conspiracy and criminal breach of trust committed by former ministers and high-ranking officials including Nasimuddin Siddiqui (Ex-Minister) & Babu Singh Khushawa (Ex-Minister) in the state of UP for their involvement in relation to a project initiated by the State Government in the year 2007 to build parks and museums including Ambedkar Samajik Parivartan Asthal, Hon'ble Kashiram Smarak Asthal Gautambudh Nagar Upvan Echo Park and Noida Ambedkar Park., which allegedly caused a loss of Rs. 14,000 crores to the exchequer. The petitioner was a supplier of sandstone and made a total supply worth INR 90 Lakh but till date only received 26 Lakhs. The remainder/balance remains unpaid till date. 

No need for custodial interrogation of the accused: Senior Advocate Pramod Kumar Dubey

The counsel for petitioner, Pramod Kr. Dubey, Sr. Adv along with Ravi Sharma, Adv appearing on behalf of the Petitioner argued that the Investigation has been ongoing for 7 years and the Petitioner, admittedly has joined investigation and as such there was no need for custodial interrogation of the Accused. It was also contended that the Petitioner is a mere supplier and has no connection with the alleged crime whatsoever. It was further contended that there is no apprehension that the Petitioner will flee from justice nor is there any apprehension of tampering of evidence as the Investigating agency is in the process of filing charge-sheet.

Section 170 Cr. P.C mandates the police to take the accused into custody before presentation of charge-sheet: Counsel for state 

The Counsel for state vehemently opposed the Petition and argued that custodial interrogation of the accused was necessary and Section 170 Cr. P.C mandates the police to take the accused into custody before presentation of charge-sheet. 

The word “custody” appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody: Supreme Court

After hearing the arguments at length, the Supreme Court made it clear 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 chargesheet. 

While rejecting the arguments advanced on behalf of the state, Supreme Court categorically stated that custody of accused must not be resorted in routine manner and where the Police/investigating agency is in the process of filing of charge-sheet and the accused has not been arrested during Investigation, then no purpose will be served by arresting the accused persons merely for taking cognizance of charge-sheet as contemplated u/s 170 Cr. P.C.

We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the chargesheet 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, it said.

Relying on multiple judicial precedents available on the interpretation of Section 170 of C.r.P.c., the apex court was 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 Cr.P.C. 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.

Emphasizing on the importance of personal liberty of the accused, the court stated that merely because an arrest can be made because it is lawful does not mandate that arrest must be made.

The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond, it added.