Explanation and Correct interpretation of the word Custody in Section 170 CrPC
1. Introduction
Section 170 CrPC reads –
Section 170 in The Code of Criminal Procedure, 1973
170. Cases to be sent to Magistrate when evidence is sufficient.
(1) If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for the attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer-in-charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with facts and circumstances of the case as, he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.
(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.
Sub-section (1) of Section 170 uses the phrase ‘accused under custody’. This phrase in absence of any clarification led to confusion, which in turn led to a perpetual flow of bail applications in courts after the filing of charge sheet / final report.
2. Interpretation of the word Custody in Section 170 CrPC
The Hon’ble Supreme Court noted that the Courts in India were receiving a continuous stream of cases seeking bail after filing of the Charge sheet / Final Report. It was happening primarily due to wrong interpretation of Section 170 CrPC.
A clarification therefore became necessary to correctly interpret the position of law w.r.t. Section 170 CrPC.
3. High Court Judgments
3.1 Delhi High Court Judgment: Court on its own motion vs. CBI (Central Bureau of Investigation) 2004 (72) DRJ 629
“15. Word “custody” appearing in this Section does not contemplate either police or judicial custody, It merely connotes the presentation of accused by the Investigating Officer before the Court at the time of filing of the chargesheet whereafter the role of the Court starts. Had it not been so the Investigating Officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court.
In case the police/Investigating officer thinks it unnecessary to present the accused in custody for the reason that accused would neither abscond nor would disobey the summons as he has been co-operating in investigation and investigation can be completed without arresting him, the IO is not obliged to produce such an accused in custody.
[…]
19. It appears that the learned Special Judge was labouring under a misconception that in every non-bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation, 20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating officer in completing the investigation, It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be: required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the concerned Investigating Officer or Officer – in – charge of the Police Station thinks that presence of accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out. “
Delhi High Court
Court on its own motion vs. CBI; 2004 (72) DRJ 629
3.2 Gujarat High Court Judgment: Deendayal Kishanchand & Ors, vs. State of Gujarat 1983 Crl.LJ I583
“2….It was the case of the prosecution that two accused, i.e. present petitioners Nos, 4 and 5, who are ladies, were not available to be produced before the Court along with the charge-sheet, even though earlier they were released on bail. Therefore, as the Court refused to accept the charge-sheet unless all the accused are produced, the charge-sheet could not be submitted, and ultimately also, by a specific letter, it seems from the record, the charge-sheet was submitted without accused Nos. 4 and 5. This is very clear from the evidence on record. […]
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8. I must say at this stage that the refusal by criminal courts either through the learned Magistrate or through their office staff to accept the charge-sheet without production of the accused persons is not justified by any provision of law. Therefore, it should be impressed upon all the Courts that they should accept the charge-sheet whenever it is produced by the police with any endorsement to be made on the charge-sheet by the staff or the Magistrate pertaining to any omission or requirement in the charge-sheet. But when the police submit the charge-sheet, it is the duty of the court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence. Likewise, police authorities also should impress on all police officers that if charge-sheet is not accepted for any such reason, then attention of the Sessions Judge should be drawn to these facts and get suitable orders so that such difficulties would not arise henceforth.”
Gujarat High Court
Deendayal Kishanchand & Ors, v. State of Gujarat; l983 Crl.LJ I583
4. Supreme Court Judgments
4.1 Siddharth vs. State of Uttar Pradesh; Criminal Appeal No. 838 of 2021
It has rightly been observed on consideration of 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. 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. 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 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.
We may note that personal liberty is an important aspect of our constitutional mandate. 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. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it (Joginder Kumar v. State of UP & Ors. (1994) 4 SCC 260). If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.
We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar’s 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.
Supreme Court of India
Siddharth vs. State of Uttar Pradesh; Criminal Appeal No. 838 of 2021