The Supreme Court refused to hear a motion in brief filed by the organization “Lawyers Against Malicious Prosecution” aimed at formulating guidelines to prevent defendants, who were not arrested during the investigation, be detained by special magistrates / courts. on the taking into account of complaints.
The court said it was considering a similar issue in the context of knowledge of the indictments in the Satinder Kumar Antil v CBI case. Consequently, the Court gave the freedom to the lead counsel of the applicant organization, Dr Maneka Guruswamy, to make suggestions to the additional Attorney General who appears in the Satinder Kumar Anil Case. In this case, the Court proposes to set guidelines for the granting of bail to an accused, who was not arrested during the investigation, after the filing of the indictment.
In the present case, “Lawyers Against Malicious Prosecution” called for the proposed guidelines to be applicable to complaints and cases brought to special courts by agencies such as ED, DRI, Customs & NIA, and not just to indictment cases. investigated by state police. .
The bench of Judges SK Kaul and MM Sundresh while dismissing the motion as withdrawn in their noted order,
“Since a larger canvas is being debated before us in SLP (Crl) n ° 5191/2021 and the additional solicitor general is to assist us, Ms. Maneka Guruswamy, the senior counsel may be allowed to make his suggestions to the additional learned solicitor general in this regard. The request is dismissed as withdrawn. The motion in brief is dismissed as withdrawn in the aforementioned terms, with the freedom for Ms. Maneka Guruswamy to give her suggestions to the additional learned attorney general. “
Senior Lawyers Nalini Chidambaram and Maneka guruswamy appeared for the petitioners (Lawyers against malicious prosecution).
When the case was called to the hearing, Judge Kaul, presiding judge, noted: “Ms. Chidambaram, how can this petition come about? We have already established the law. Now you want us to establish principles for the designated special courts such as ED that they are to follow.”
To answer the question posed by Judge Kaul, Senior Counsel Nalini Chidambaram relied on the Supreme Court’s judgment in the Siddharth v State of Uttar Pradesh & Anr case in which the Court, while interpreting Article 170 CrPC, held that the police do not need to arrest every accused after the filing of the indictment.
Adding that the order in Siddharth clarified the position of the arrest of the accused u / s 170 CrPC at the post-investigation stage after the completion of the investigation, lead counsel argued that a similar position in cases u / s 200 and 204 CrPC remained open with great ambiguity.
“Yes, we did. When a situation arises, we must lay down the law. When the case of ambiguity arises, we must clarify it. We have different questions ahead of us. We will clarify their position. If we receive these petitions at the request of associations, it will give a false impression,added Judge SK Kaul.
At this point, lead counsel Maneka Guruswamy representing the applicants requested leave from the Court to give her suggestions to the Additional Attorney General in Satinder Kumar Antil v CBI.
“We want to put certain principles in place. ASG itself felt that a law had to be established which could be followed uniformly”, Judge SK Kaul, presiding judge, said while allowing counsel to make his suggestions.
The petitioner in the petition filed by Lawyer Prateek K Chadha argued that complaints / complaints filed by a non-police force were lower than the final report filed by a police force u / s 170 and 178 of the CrPC and if the investigative agency had not arrested the accused in investigation and then sending the accused (s) into judicial custody following their production before the designated special courts violated their right under Article 21 of the Constitution of India.
“In the above situations, the accused is denied the right (remedy) available to him under Article 438/439 of the Criminal Code to request early bail because the accused is either arrested in under an NBW and brought up to court and / or, he / she is placed in judicial custody when appearing before the designated court and the court hearing the complaint. And honorable high courts often do not accept Cr.PC 438/439 motions until the cause of action apprehends the arrest arises from the knowledge of a complaint lodged by the special appointed court, at which time it is too late for the accused to be able to act. avail of the appeal Cr.PC Section 438/439, “ petition had stated.
It was also argued in the petition that the issue of NBW in the case relating to Article 200 and 204 CrPC, 1973 and the return of the accused (s) to judicial detention although they were not arrested during investigation was almost inevitable in the complaints filed by ED, Customs, DRI and other specialized agencies which had the power to stop but filed a complaint under Cr. PC 200 and 204 which resulted in the incarceration of accused (s) for long periods in judicial detention due to such an approach by the courts of first instance.
The bench of the Supreme Court of Judges SK Kaul and Hrishikesh Roy on July 28, 2021, in Satinder Kumar Antil v CBI had decided to lay down principles as to whether a person who was not arrested during the investigation, appearing on the indictment being filed, could be taken into police custody when she appeared on summons.
Case title: Lawyers against malicious lawsuits against Union of India and Anr | Written request (Civil) No (s) 389/2021
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