High Court Cannot Direct Investigation Agency to Arrest the Accused: Supreme Court

Direction to take an accused into custody is beyond High Court’s jurisdiction and it is for the Investigating Agency to decide whether to arrest or not, the Apex Court has recently observed.

The Bench stated that they were approving the entire High Court judgement except the one-sentence ‘in so far that there was a positive direction to the Investigating Officer to arrest petitioner’ and this part was set aside.

The Bench of Justice Hemant Gupta and Justice V Ramasubramanian considered an SLP against a 24th May order of the High Court of Karnataka to quash the anticipatory bail given by Addl. District and Sessions Judge, Mangaluru to a petitioner ( a police officer ) in a rape case and committing sexual intercourse on the pretext of marriage.

Further, the Court transferred the investigation to the Corps of Detectives and directed it to submit the final report within four months. The Court also directed the authorities to initiate action against named police officers who allegedly helped the accused officer.

The complainant, in person, submitted that she was receiving death threats from the accused and asked the Court who was going to protect her.

However, Justice Gupta told the petitioner that she could oppose the accused’s bail or approach the witness protection programme. He further stated that whether the accused should be arrested or not in a particular crime, this call should be made by the investigating agency, in this case, the COD. After that, it was open for the IO to take a call if the petitioner should be arrested or not.

When the petitioner’s counsel stated that the petitioner was cooperating with the investigation, Hon’ble Justice Gupta said that they wouldn’t say when to arrest or not arrest. If the COD wishes to arrest, it will.

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While disposing of the SLP, the Court added that it was open for the IO to take a call on whether the petitioner should be arrested or not.

Lastly, Justice Hemant Gupta stated that anticipatory bail couldn’t be granted because the complaint has a lousy history and added that even if she has made similar complaints in the past, she can’t be branded stuff.


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