A magistrate cannot question the discretionary power of a police officer to arrest an accused when taking note of the charge sheet in a case, the Delhi High Court has said.
A bench of justices Vipin Sanghi and P S Teji also said that a metropolitan magistrate can return a charge sheet only if he finds the investigation was not complete, or the charge was not borne out from the evidence.
"But he cannot return the same (charge sheet) merely because the accused has not been arrested and produced in custody at the time of filing the charge sheet," the bench said.
It also said that the metropolitan magistrate's view that in offences where the sentence is beyond seven years, the investigating agency should necessarily arrest the accused and produce him in custody at the time of filing the charge sheet "has no basis and is contrary to the statutory scheme".
The finding came on a reference sent by the chief metropolitan magistrate of Karkardooma court in east Delhi on a whether a metropolitan magistrate can examine the discretion exercised by an investigating officer for arresting or non- arresting the accused persons, while considering the charge sheet at the stage of taking cognisance.
Answering the query in the negative, the high court said a "metropolitan magistrate cannot examine whether the discretion of the Investigating Officer (IO) to arrest, or not to arrest the accused, has been properly exercised.
"He is only concerned with the charge sheet, as filed. He may return the charge sheet if he finds that the investigation is not complete, or the charge is not borne out from the evidence collected and filed with the charge sheet."
The high court's observation came after hearing advocate P K Dubey, who was appointed as the amicus curiae, and Rahul Mehra, the standing counsel for the police.
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