Shruti Mishra 16 August 2020

how to vacate arresting stay given by HC till 173(2)

accused got arresting stay till the submission of chargesheet but on condition that accused will participate in investigation. Investigating officer has served notice u/s 160 croc for recording the statement of accused but accused has not given their statements and they are escaping from investigations because in other similar case crime number NBW has been issued and IO is same. is it possible that arresting stay can be vacate on the ground that accused is not participating in investigation? if yes than plz give reference of any SC judgement. it will be really helpful. thanks in advance for your prompt revert

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5 Replies

Dr J C Vashista (Advocate) 16 August 2020

It is the duty / discretion / privilege of investigating officer, where you have no role/ control.

Is there any provision of law to stay arresting ?

What is your locus standi / concern to the query.

Shruti Mishra 16 August 2020

IO is calling accused by issuing notice for recording the statement so he can file chargesheet against accused....
modified query is their is any possibility on the stage of investigation to vacate the arresting stay grant till the submission of chargesheet. io is having enough evidence against accused to stay

K Rajasekharan (Advocate) 16 August 2020

The order directing not to arrest the accused till charge sheet is filed, on the condition that the accused will cooperate with the investigation, can definitely be withdrawn when the prosecution presents the fact of non cooperation of the accused in the investigation to the court.

When a condition of an order is violated the court is competent to cancel the order outright. No case law is needed to do it, as it is a well settled principle.

{Balu manikantan} SUBRAMANYAM (Practising Advocate) 16 August 2020

IF you are complainant/ aggrieved in the case you can get the stay vacted in the high court by citing the Hon'ble Supreme court judgement delivered on march 28th 2018 in Asain Resurfacing of Road Agency Private Limited & Anr v CBI {2018 SCC Online SC 310} which says that all stays are deemed to be lapsed after 6 months from the date of judgement.

P. Venu (Advocate) 16 August 2020

Please posted are disjointed and do not bring out the real issue. Are you the complainant or the investigating officer. What do you mean by "arresting stay"?