Judge vs CBI in HC over arrest of accused

A subordinate court judge has approached the Delhi High Court, seeking clarity on an important point of law – whether a Metropolitan Magistrate (MM), at the stage of taking cognisance of the chargesheet, can examine the discretion exercised by an Investigating Officer (IO) in not arresting an accused if it is found that the IO has not exercised his discretion properly.

The judge has also asked the High Court to clarify is he is empowered under law to return the chargesheet for further investigation on the point of arrest of the accused persons.

Pitted against the MM is the Central Bureau of Investigation, which investigated the case in question and whose IO had, surprisingly, decided against arresting any of the eight accused in a criminal case involving fraud during investigation or later and had also chosen not to give any reason for not arresting them.

The tussle relates a case where eight persons stand accused of having defrauded a bank in 2013 to the tune of crores of rupees by availing loans in the name of fictitious companies and by using fake identity documents.

In his criminal reference to the Delhi High Court, Chief Metropolitan Magistrate, East District, Karkardooma Court, Delhi, Naresh Kumar Laka has stated that he returned the chargesheet to the CBI IO for reconsideration and to explain the reason for not arresting the accused on the grounds.

In his reference to the High court, he has stated, "When the country is facing huge economic crisis on account of numerous scams which are having a disastrous impact on the state efforts to stabilize the economy of the country, then under the given circumstances on a much graver footing in respect of punishment and a serious view has to be taken of such offences which show a distressingly growing tendency".

While returning the CBI chargesheet, he had also pointed to the CBI that "….the power to arrest still remains on the statue book, if the offence is grave and reasonable grounds exist to believe commission of such offence".

"Keeping in view, the gravity of the offences, the manner in which they are committed in a pre-planned account and embezzlement of huge sum of Rs 350 lakh, this court is of the opinion that the accused should have been arrested and discretion by the Investigating officer (IO) is not judicious and rather it was mechanical in nature," he had observed.

The MM had also pointed out that all the offences against the accused were non-bailable and that the IO is bound to arrest the accused where there is significant evidence. But, in this case, by showing the accused in the category of "without arrest", he (IO) had converted all the said offences to "bailable", which was not permissible.

However, unhappy with his decision, the CBI challenged the decision in the Delhi High court.

The CBI, in its plea, has contended that the investigation was the exclusive domain of the police agency and magistrate has no power to interfere in it.

Taking up the petition, the HC bench of Justices Siddharth Mridul and Najmi Waziri appointed advocate PK Dubey to assist the court as amicus curiae.