ORDER: Pursuant to a complaint, a case in Cr.No.362 of 1996 on the file of Kalaikkavilai Police Station, Kanyakumari District was registered and after investigation, charge sheet was filed against the accused for offences under Secs.147 and 320, I.P.C. During the course of investigation, the accused 1, 4 and 5 were arrested and the other accused were not arrested. Without taking the charge sheet on file, the learned Judicial Magistrate No.I Kazhithurai returned the charge sheet to be produced along with other accused, but the other accused were neither arrested nor the charge sheet was resubmitted by the police. A Criminal O.P.No.7694 of 1997 was filed before this Court for a direction to arrest the remaining accused and to resubmit the charge sheet. That O.P. was closed on the undertaking given by the Government Advocate that the remaining accused will be arrested and the charge sheet will be resubmitted within a period of three weeks. Since the other accused were not arrested nor the charge sheet was re-submitted, the petitioner has approached this Court by way of another Crl.O.P. for direction to arrest the remaining accused and resubmit the charge sheet.

2. During the course of investigation, the police at times were unable to effect arrest of some of the accused, may be for some reasons, the common one among them is that the said accused was said to be absconding and evading arrest. Under such circumstances, it is not possible for the investigating agency to effect arrest on a particular accused within a reasonable time. Moreover, in cases where non bailable warrants were issued by the Courts, the accused could not be arrested by the police because they were evading arrest. Therefore to give direction to arrest the accused, according to me, may not be proper in any case, specially in this case where the accused could not be traced. Learned Magistrate also cannot return the case without taking it on file only on the ground that the other accused were not produced. He ought to have taken the case on file and issued non-bailable warrants tor the arrest of the remaining accused. Instead of taking that course, learned Magistrate in this case has chosen to return the very charge sheet itself, with a direction to resubmit it after arresting the remaining accused. This according to me, is an order passed by the Magistrate, without power.

3. Police Standing Orders 646 clearly says that a police officer has discretion whether or not to arrest a person of his own motion in a cognizable case. Arresting the accused is part of the investigation and it is for the investigating officer, either to arrest the accused or not to arrest the accused. But a direction to arrest the accused cannot be given, in all cases under Sec.482, Crl.P.C. unless the order of arrest is necessary in the interests of justice. The Supreme Court while discussing the circumstances under which arrest can be made, in the case of Joginder Kumar v. State of U.P., A.I.R. 1994 S.C. 1172 has held as follows:

“No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. 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 includable 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 rights 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 recommendations o

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