JUDGMENT

1. The present petitions are filed seeking expunction/deletion of the remarks/observations/strictures issued by the learned Chief Metropolitan Magistrate, North East District, Karkardooma Courts, Delhi vide orders dated 12.08.2022, 12.09.2022, 02.11.2022 in CR Case No. 3350/2022, orders dated 04.07.2022, 04.08.2022, and 21.09.2022, 28.10.2022 in CR Case No. 466247/2015, orders dated 08.09.2022 and 14.10.2022 in CR Case No. 214/2021.

2. By way of the captioned petitions, the State challenges the orders dated 12.08.2022, 12.09.2022, 02.11.2022 passed by the learned Trial Court in CR Case No. 3350/2022.

3. The FIR in this case being FIR No. 159/2020 dated 17.10.2020 was registered under Sections 420/468/471/120B of the Indian Penal Code, 1860 (‘IPC’) and Section 3 of the Emblems and Name (Prevention of Improper Use) Act, 1950. Cognizance of the offence was taken under Sections 420, 468, 471, 201, 120B of the IPC and Section 5 of the Emblems and Names (Prevention of Improper Use) Act, 1950.

4. The FIR was registered on an allegation that the accused persons, on the pretext of selling a rice-puller, had cheated the complainant of several lakhs of rupees.

5. The learned Trial Court vide order dated 12.08.2022 dismissed the bail application filed by the respondent. The learned Trial Court noted that the respondent had not disclosed about the filing and disposal of the previous bail applications. It was noted that the allegations against the respondent were serious in nature and involved cheating of several lakhs of rupees. While dismissing the bail application, the learned Trial Court also made certain observations pertaining to the conduction of the investigation and the arrest of the accused and non-arrest of the other accused persons as under:

“It appears that the police at Crime Branch acted as recovery agents of the victims. Whoever returned money was not arrested and since accused Nilesh Mishra did not pay up, he was arrested by the police. It seems that the Crime Branch is not aware of the considerations it should have while determining if the accused

should be arrested, as has been enunciated by the Hon’ble Supreme Court in various cases.

Also, when the IO was questioned, if he had taken steps for obtaining non-bailable wan-ants and process under Section 82 Cr.PC against the accused persons who as per him were absconding and whose addresses are known to the Police, the way he did it qua the accused Siraj Malik, he has replied in the negative.

It is evident that the Police at Crime Branch exercised their discretion of treatment towards the various accused persons arbitrarily. As per the IO, several other accused persons including Akash Rana, Gurusharan Singh Chauhan, Manoj Sharma, Jaisim Ansari and Parvinder Kohli had also received the cheated amount, the way Nilesh Mishra did. As per the IO, the addresses of atleast some of them are known to the Police. The Police took steps for declaring accused Siraj Malik as a proclaimed offender, but took no such steps towards other accused persons who as per Police were absconding.

If they were not absconding, for reasons best known only to the Crime Branch, they were not arrested. Whether to arrest an accused or not is a discretionary power of the Police. However, this discretion should not be exercised arbitrarily.

Since the exercise of discretion by the Police in the present case appears to have been arbitrarily done, it is the duty of the Court to bring it to the notice of Senior Police Officers.

Issue notice to the Special Commissioner of Police, Crime Branch with direction to examine the reasons for which the Police chose not to arrest accused persons other than the accused Nilesh Mishra and if those other accused persons have been absconding, the reasons why steps were not taken for initiating proceedings for declaring those accused persons as proclaimed offenders.

Copy of this order be sent alongwith the notice.

Action taken by the Special Commissioner of Police, be in