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. 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 of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided; if a police officer issues notice to person to attend the station notice to person to attend the Station House and not to leave Station without permission would be.” 4. Powers under Sec.482, Crl.P.C. cannot be liberally exercised and it has to be sparingly exercised, in cases where there is a dire need of exercise of this power. That is why, Police Standing Order 646 would say that it is the discretion of the police officer to effect the arrest of a particular person. It is not fair on the part of the Court to interfere with the powers of the investigating agency unless and until the investigating agency was imputed with any mala fides for not effecting the arrest. In this case, after the arrest of A-1, A-4 and A-5 charge sheet was filed showing the other accused in the absconding column; then it is for the Court to take the case on file if the materials available on record are sufficient and then for the arrest of the accused and production before the Court, warrant ought to have been issued by the Magistrate. Sec.173, Crl.P.C. says that when the report is forwarded to the Magistrate, it must mention whether the accused has been arrested, if so whether released on bail or whether forwarded to custody under Sec.170, Crl.P.C. Nowhere it is said that the accused shall be forwarded to custody along with a final report if not otherwise done earlier under Sec.167 or 170, Crl.P.C. Even Sec.170, Crl.P.C. only says that if upon investigation, there is sufficient evidence, the accused under custody shall be forwarded to the Magistrate. That means only if the accused is in custody and in case the accused is not arrested, the question of forwarding him does not arise. Therefore, the learned Magistrate is not correct when he returned the charge-sheet with a direction to arrest and produce the accused. He ought to have taken steps known to law for the production of the accused. Therefore, the learned Magistrate is not correct when he returned the charge-sheet with a direction to arrest and produce the accused. He ought to have taken steps known to law for the production of the accused. At times, belated cognizance of the offences may affect the course of justice by being barred by limitation. Therefore for want of production of the accused the final report should not be returned. 5. Since the matter is pending for a long time, she concerned police officer is directed to resubmit the charge sheet with reasons for his inability to arrest the remaining accused and the Learned Magistrate is directed to take the case on file and in case the remaining accused are so far not arrested and if the Court found that their presence is essential, then issue non-bailable Warrant for their arrest and production. 6. With these observations, this petition stands dismissed.