"Direction To Take Accused Into Custody Is Beyond Jurisdiction Of High Court, It is For The Investigating Agency To Decide": Supreme Court

Mehal Jain

15 Jun 2021 12:51 PM GMT

  • Direction To Take Accused Into Custody Is Beyond Jurisdiction Of High Court, It is For The Investigating Agency To Decide: Supreme Court

    Direction to take accused into custody is beyond jurisdiction of High Court; it is for Investigating Agency to take a call whether to arrest or not', Supreme Court has recently observed."We are approving the entire judgement of the High Court except one sentence- Only in so far as there is a positive direction to the Investigating Officer to arrest the petitioner, we are only setting...

    Direction to take accused into custody is beyond jurisdiction of High Court; it is for Investigating Agency to take a call whether to arrest or not', Supreme Court has recently observed.

    "We are approving the entire judgement of the High Court except one sentence- Only in so far as there is a positive direction to the Investigating Officer to arrest the petitioner, we are only setting that aside".

    The bench of Justices Gupta and V. Ramasubramanian was considering an SLP against a May 24 order of the Karnataka High Court quashing the anticipatory bail granted by the Additional District and Sessions Judge, Mangaluru to the petitioner, a police officer, in connection with an FIR under sections 376 (rape) and 323 (hurt) for allegedly compelling the complainant for sexual intercourse on the false promise of marriage. Further, by the impugned order, the High Court had transferred the investigations to the Corps of Detectives (COD) and the Investigation Agency was directed to submit a final report not later than four months from the date of the order. Besides, the High Court had directed the District Superintendent of Police to initiate action against named police personnel for being hand-in-glove with the petitioner and for the lapses on their part and to submit a report within three months. Finally, the High Court had directed the Investigating Officer to take the petitioner-accused into custody and produce him before the concerned jurisdictional Court.

    "I am continuously receiving life threats from him. How will I be protected during the trial if he is at large?", asked the complainant-in-person.

    "There are alternative remedies for that. You can approach under the Witness Protection Programme. If he is arrested and seeks bail, you will also have the right to oppose that", Justice Gupta told the complainant.

    "Whether the accused is liable to be arrested or not is dependent on the investigation of a particular crime. It is for the investigation agency, the COD in this case, to take a call. We will set aside and quash this condition. It is open to the IO to take a call as to if and when the petitioner is to be arrested", said the judge.

    When the advocate for the petitioner pressed that the petitioner is cooperating in the investigation, Justice Gupta said to him, "'When to arrest' or 'not to arrest'- we won't say any of this. If the COD wishes to arrest, it will"

    In the order, the bench recorded that the present SLP is directed against an order passed by the High Court of Karnataka on 24.05.2021, whereby the anticipatory bail granted to the petitioner by VI Additional District and Sessions Judge, Dakshina Kannada, Mangaluru was quashed for the offences under Section 323 and Section 376 of IPC. The investigations were transferred to Corps of Detectives (COD) and that the Investigation Agency was directed to submit a final report not later than four months from the date of the order.

    There is another direction issued by the High Court which reads as under:"The Investigating Officer is directed to take the accused into custody and produce him before the concerned jurisdictional Court."

    "We find that such direction to take the accused into custody is to beyond the jurisdiction of the High Court. Whether an accused is liable to be arrested is based upon the decision of the Investigating Officer depending upon the material collected during the investigation which may be conducted in a particular crime. It is for the Investigation Agency to whom the investigation has been entrusted to take a call as to when the petitioner is to be arrested. Therefore, the condition No.3 in the impugned order dated 24.05.2021 is set aside and quashed", ordered the bench.

    Disposing off the SLP, the bench added that "It is open to the Investigating Officer to take a call as to when the petitioner is to be arrested or he is not to be arrested".

    "Anticipatory bail cannot be granted (in a sexual assault matter) because, allegedly, the complainant has a bad history. Even if she has made such complaints in the past, she cannot be branded like this!", Justice Hemant Gupta has observed. 

    The division bench of Justices Gupta and Ramasubramanian was told by the advocate for the SLP petitioner that though the complainant (Respondent no. 1 in the SLP) is portrayed as innocent, the truth is different. Narrating the antecedents of the complainant, the advocate advanced,
    "The complainant is having the habit of filing the complaint against others. She had filed three cases in total for the offence punishable under Section 376 of IPC and other offences and now she is claiming that she is innocent, but the fact is otherwise"
    "Anticipatory bail cannot be granted because, allegedly, the complainant has a bad history. Even if she has made such complaints in the past, she cannot be branded like this!...You wanted to marry her but you changed the place and went to some other temple. The mangalsutra was purchased and a Mahuratam was fixed. Such allegations need investigation. It is for the IO to decide if he wishes to seek arrest or not", observed Justice Gupta.
    Noting that the state has not been issued notice in the matter and that the complainant is present on caveat, the bench chose to listen to her before passing any order.
    Appearing in person, the complainant told the bench,
    "They are constantly making references to my past! It was solely on this basis that they managed to get anticipatory bail from the Additional District and Sessions Judge! I was not heard before the bail was granted! Even the 164 statements were not produced before the judge! Just by referring to my past the bail was obtained!"
    The Supreme Court then proceeded to affirm the judgment of the High Court in so far as the anticipatory bail granted in favour of the petitioner was quashed; the state DGP was directed to entrust the investigation to the COD forthwith and the investigating agency was directed to submit the final report not later than four months; and the District Superintendent of Police was directed to initiate action against the named police personnel for being hand-in-glove with the petitioner and to submit report to the High Court within three months. However, the bench set aside the direction of the High Court requiring the Investigating Officer "to take the accused into custody and produce him before the concerned jurisdictional Court".
    The order of the High Court also records that it was the case of the SLP petitioner that the complainant's marriage was solemnised in the year 2010 and in the year 2011, she had filed a complaint against her husband and in the year 2015, both of them obtained the decree of divorce on mutual consent. It was contended that the complainant had immediately lodged a complaint on 22.04.2015 against one Santosh, on the basis of which an FIR was registered for the offence under Section 376 of IPC and investigation was conducted and chargesheet was filed. The said accused had filed the application for discharge and the said application was also allowed. "Merely because she has lodged the complaint against persons at whose instance she was subjected to harassment and also that she was subjected to sexual harassment by taking advantage of the loneliness of a woman, she cannot be branded as an habitual complainant... All the police machinery have come to the conclusion that she is having the bad character. Even assuming for a moment that she is having a bad character, whether the person, who is obligated to protect the people, could abuse his powers... This Court has to come to the rescue of a woman, who was subjected to sexual harassment by the police officer when no steps are taken by the police officials from the lower level to the higher level, though the complaint is forwarded to the Home Minister as well as the Chief Minister. Merely because she lodged two complaints earlier against other persons, the same would not be a ground in coming to the conclusion that she is not having a good character and it cannot be said that no such incident of sexual harassment was taken place", the High Court had said in quashing the grant of anticipatory bail.


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