Can metropolitan magistrate examine IO discretion in arresting

The Delhi High Court is scrutinising whether a magisterial court can question a police officer's discretionary power on arrest of an accused at the time of taking note of the charge sheet in a case.
The high court will also examine whether the metropolitan magistrate (MM) can return the charge sheet for further probe if it is found that the investigating officer (IO) has not exercised his discretion lawfully on the point of arrest.
A bench of justices Siddharth Mridul and Najmi Waziri said that the issue assumes importance as it has been seen that in serious cases where charge sheet has been filed, the accused is not arrested and in less serious ones where even charge sheet has not been filed, the accused has been arrested.

"Whether a MM can examine the discretion exercised by an IO for arresting or non-arresting the accused persons, while considering the charge sheet at the stage of taking cognisance and if it is found the IO has not exercised his discretion lawfully, whether the court of MM can return the charge sheet for further investigation on the point of arrest of accused persons," was the question raised by the bench.
It appointed an amicus curiae, advocate P K Dubey, to assist it in the matter and listed the case for hearing on October 27.
Rahul Mehra, the standing counsel for Delhi Police, sought time to examine the law before addressing the court on the issue.

The issue was referred to the high court by the chief metropolitan magistrate of Karkardooma court in east Delhi.