( 1 ) HAVING come across the following news item in a national daily "statesman"of 16th September, 2003 this Court took suo moto notice as prima facie illegality in the order was writ large on the face, summoned the record, noticed the CBI and stayed its operation. The news item reads as follows:-

"special Court returns CBI charge-sheet statesman News Service new DELHI, Sept. 15.- The Central Bureau of Investigation was at the receiving end of the ire of a special court today with the judge declining to accept its chargesheet against an IRS official-allegedly involved in a fake visa racket during his posting in Tanzania and snubbed it for not arresting him during the investigation. Additional session Judge Mr. Prem Kumar returned the chargesheet to the agency saying it was not observing a uniform policy or norm in arresting accused persons during investigations. The court rejected CBI contention that provisions of Section 170 Cr. P. C. , which requires the investigating officer to forward the accused under custody to a magistrate, did not apply in the present case. The agency chargesheet accused Rajeshwar Singhal of misappropriating Rs. 23. 09 lakh while acting as first secretary at the Indian High Commission in Tanzania in 1998-2000. The agency has alleged that during his posting at Tanzanian capital Dar-es-Salaam, Singhal issued visas to the applicants by falsifying the receipts of various categories. Besides being charged under Prevention of Corruption Act for misusing the official position, he was also slapped with charges under Section 409 (criminal breach of trust) of the IPC among others. "

( 2 ) IN the instant matter, case was registered against the accused in February, 2001 and chargesheet was filed in August, 2003. During this period, the accused was not arrested as CBI did not deem his arrest necessary for investigation. But now learned Special Judge wants CBI to arrest him and has ordered that unless he is produced in custody he would not accept the chargesheet little realizing that there is prescribed limit of time for offences during which the court can take cognizance.

( 3 ) SO much so he came very heavily upon the CBI by observing that the CBI was not adhering to the norm in arresting the accused during the investigation and flouting the provisions of Section 170 Cr. P. C. requiring the Investigating Officer or Officer-in-charge of the Police Station to forward the accused in custody to a Magistrate where there is sufficient evidence and reasonable ground to put him on trial.

( 4 ) NOW the question arises whether it is legally permissible for any criminal court to refuse to accept the chargesheet where accused is neither arrested during investigation nor produced in custody by the Investigating Officer at the time of filing the chargesheet wherever there is sufficient evidence to try the accused. Answer is emphatic "no" as Section 173 of the Code of Criminal Procedure does not permit the criminal court to adopt such a course. Such a course is even otherwise fraught with serious consequence of failure to take cognizance of the chargesheet if it becomes barred by time in the process of procuring the custody of the accused for production before the court as law provides a limitation for taking cognizance of the chargesheet. Moment the chargesheet is filed, it is the duty of the court to accept it. It has no powers to return the chargesheet directing the Investigating Officer to first produce the accused in custody. It is not imperative or necessary for the officer-in-charge of the police station to forward each and every accused in custody at the time of filing of the charge-sheet wherever there is sufficient evidence to try the accused.

( 5 ) ACCORDING to Section 173 of Cr. P. C three courses are open to the Magistrate or a Court: (i) It may accept the report and take cognizance; (ii) It may disagree with the report and drop the proceedings; (iii) It may direct further investigation.

( 6 ) IT is co