1. From the aforesaid discussion regarding the scheme of the Criminal Procedure Code and the principles laid down by the Supreme Court, the legal position that emerges and the proposition which can be formulated may now be summed up.

(1) That there are several steps in the investigation of a case. Investigation of a case which ultimately culminates in filing of charge sheet under Section 173 of the Criminal Procedure Code is essentially within the domain of the executive. The Magistrate has certain functions to be performed even during the course of investigation, but these are discretionary functions in respect of which the initiative is that of the executive. Whenever the Magistrate exercises his function in this sphere, it is his responsibility. His functions are not only supplementary at a higher level to those of the executive but are intended to prevent abuse also. The prevention of abuse would by necessary implication take within its sweep abuse, both by police as well as by the accused. It is the duty of the Magistrate to see that either side does not abuse the process of court.

(2) Ordinarily, the arrest of an accused is not the function to be performed by the Magistrate. This is the duty cast upon the investigating agency and the police. True, the Magistrate has been expressly empowered to arrest an accused when the offence is committed in his presence and within his local jurisdiction (See Section 44(1) of the Criminal Procedure Code). He is also empowered to direct the arrest of an accused within, his local jurisdiction and issue warrant for the same if he is otherwise competent at the time and in the circumstances of the case (Section 44(2) of the Criminal Procedure Code). But this is not his ordinary function. This power of arrest conferred upon the Magistrate is, as stated by the Supreme Court, supplementary of the executive. Therefore, it is not to be exercised so as to become an obstruction in the process of investigation.

(3) Similarly, it must also be borne in mind that the police can collect evidence by discovery of certain facts as per the provisions of Section 27 of the Evidence Act. The provisions of this Section 27 of the Evidence Act can be invoked only if an accused volunteers himself to make discovery before the police when he is in police custody. If he is not in police custody and makes such statement, provisions of Section 27 of the Evidence Act cannot be invoked.




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