Mr.
Rishabh Shah, learned advocate for the petitioner seeks permission to withdraw the application with a view to file an appropriate application for discharge as and when the chargesheet is filed by the investigating agency.
Permission, as prayed for, is granted. The application is disposed of, as withdrawn. Rule is discharged.
It may be noted that by an order dated 22.7.2010 made in the present application, the Court had recorded that the learned Additional Public Prosecutor had stated that the chargesheet against the rest of the accused is already filed and investigation is complete even qua the present petitioner. The Court had, therefore, left it open to the investigating agency to file chargesheet against the present petitioner also. Despite the aforesaid liberty granted by the Court, it appears that the chargesheet had not been submitted by the investigating agency.
At this stage, it may be apposite to refer to the following observations made by the Supreme Court in the case of Som Mittal v. Government of Karnataka, AIR 2008 SC 1126, wherein it has been held as under:
"42.
It has been held by this Court in Joginder Kumar v. State of U. P. and others, AIR 1994 SC 1349 (vide para 24) that No interest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing and the justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional right of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendation of the Police Commissioner merely reflects the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be a reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the Station House and not to leave Station without permission would do."
Thus, as held in the aforesaid decision, the existence of the power to arrest is one thing and the justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. In the present case, since as per the statement made by the learned Additional Public Prosecutor, investigation qua the present petitioner has also been concluded, there would be no legal necessity to arrest the petitioner. Under the circumstances, it is expected that the investigating agency shall abide by the observations made by the Supreme Court in the above decision.
[HARSHA DEVANI, J.] parmar* Top