JUDGMENT :

1. Heard Mr. A.K. Jain, learned counsel appearing for the petitioner as well as Mr. M. Haloi, learned Public Prosecutor appearing for the CBI.

2. This is an application under Section 439 Cr.P.C, preferred by the petitioner, namely, Mukut Saikia, who is in the jail hajot since 26.05.2022, in connection with C.R. case No. 4381/2021 arising out of CBI, SCB, Kolkata Case No. RC-10/S/2019 under Sections 120B/364/506/302 of the Indian Penal Code and Paltan Bazar Police Station Case No. 217/2010 registered under Sections 365/341/506/34 IPC.

3. The petitioner was a police personnel. An FIR was lodged by Sri Paramjit Singh on 07.04.2010, which was registered as Paltan Bazar P.S. Case No. 217/2010, under Section 365/341/506/34 IPC and later 302 IPC was added. The FIR was relating to kidnapping of the informant’s father Sri Inder Singh Dell from his house. The petitioner’s name was also mentioned in the FIR.

4. The legal heirs of the deceased Inder Singh Dell approached this court for an investigation by an independent investigating agency and vide judgment and order dated 04.05.2019 passed in WP(C) 2460/2010 and WP(C) 2767/2010, the Assam Police Investigation Agency was directed to transmit the record to the CBI for investigation. On 21.11.2020, the petitioner was summoned to the CBI office at G.S. Road and the petitioner had co-operated with the investigation and his statement was recorded. The charge-sheet was laid by the CBI on 15.12.2021, showing the petitioner as not arrested in red ink. Summons was issued on 03.06.2022 but a petition was filed on behalf of the petitioner showing cause of his absence. Thereafter, dates were fixed on 28.06.2022 and 22.07.2022. The petitioner’s prayer with his cause of absence was rejected and bailable warrant was issued on 25.08.2022. The petitioner, however, went to the Court on 25.07.2022 and prayed for bail, which was rejected and the petitioner was forwarded to the custody.

5. It is submitted on behalf of the petitioner that his co-accused are on bail and he has prayed for bail also on the grounds of parity.

6. It is submitted on behalf of the petitioner that his name has been erroneously shown in red ink as not arrested and it was misconstrued that he was an absconder. The petitioner had co-operated with the investigation. The trial Court also in a mechanical manner forwarded the petitioner to custody. The learned counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in the case of Siddharth Vs. State of Uttar Pradesh and Another reported in (2022) 1 SCC 676, wherein, it has been held that:-

“We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 of the Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on there quirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the Investigating Officer does not believe that the accused will abscondor disobey summon she/she is not required to be produced in custody. The word “custody” appearing in Section 170 of the Cr.P.C.does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the charge-sheet.

7. A written objection was submitted by the respondent. It is alleged that it has been mentioned in the FIR that on 07.04.2009 i.e. on the day when the informant’s father was kidnapped, at about 11.00 a.m., one Mr. Saikia and others who frequently visits Smti. Lily and Sara Begum in the same compound threatened and asked the