2024 (8) TMI 324 - HC - Money Laundering

Chief Minister's arrest by CBI under Section 41(2) CrPC upheld after non-cooperation during interrogation

Arvind Kejriwal Versus Central Bureau of Investigation

Delhi HC dismissed a petition challenging the legality of arrest. The petitioner, a Chief Minister, was arrested by CBI with court orders under Section ... Legality of arrest of the Petitioner - arrest on the material that was in possession of the respondent/CBI prior to 04.06.2024 - Insurance arrest - Compliance of Section 41(1) Code of Criminal Procedure for Arrest without Warrants - Compliance with S.41(2) Cr.P.C. for Arrest with Warrants. Compliance of Section 41(1) Code of Criminal Procedure for Arrest without Warrants - HELD THAT:- From the bare perusal of this Section 41(1), it is evident that the Police in cognizable offences where the person accused of an offence punishable with a term which may be less or extend to seven years with or without fine, can be arrested without warrants by the Police Officer. However, this power to arrest without warrants is circumscribed by Section 41 (1) (b) which provides that the arrest without warrants can only be on the satisfaction of the existence of three circumstances i.e., (i) the credible information (ii) reasonable complaint or (iii) reasonable suspicion. However, such power of arrest is further subject to five circumstances described in Section 41 (1) (ii) (a) to (e). The reliance has been heavily placed by the Ld. Senior Advocate on the decision of Apex Court in Arvind Kejriwal v. Directorate of Enforcement [2024 (7) TMI 760 - SUPREME COURT] wherein under similar circumstances the arrest of petitioner in the PMLA case has been held as illegal. However, this judgement is distinguishable as the arrest was made under Section 41 (1) Cr.P.C. without warrants, which is not the case herein involving the arrest of petitioner by the CBI with the Orders of the Court. Compliance with S.41(2) Cr.P.C. for Arrest with Warrants - HELD THAT:- Section 41(1) Cr.P.C. gets attracted only when the arrest is made without the warrant of the Court. Pertinently, in the present case, the I.O. after having interrogated the petitioner on 24.06.2024 with the permission from the Court, moved another Application on the next day i.e. 25.06.2024 seeking permission to arrest the petitioner. The said Application though again did not mention the Section in which it was filed, but from its title as well as the contents, it is evident that it was an application filed not under Section 41(1) but under Section 41(2) of Cr.P.C. 1973. It is on record that the “arrest was not solely based on ambiguous terms of non-cooperative attitude and evasive replies but these terms were duly qualified and explained.” It was pointed out the aspects on which the petitioner was not forthcoming. It is not a case where he was being compelled to be a witness against himself in contradiction to his valuable rights enshrined and protected under Article 20 (3) of Constitution of India, but it was his specific non-cooperative attitude, which was also borne out from the case diary, that hampered the collection of relevant evidence that prompted the arrest. In the present case, while permitting the arrest, the only factors to be considered by the Court were whether there is a reasonable suspicion or credible information about the commission of the offence. These factors were clearly detailed in the Application for arrest dated 26.04.2024 and it is not the argument of either party that there were no suspicious circumstances against the petitioner in regard to the conspiracy to commit the offence. In the present case, it is not in dispute that initially, after registration of FIR on 17.08.2022, the petitioner was examined on 16.04.2023 for 9-10 hours after service of summons under Section 160 CrP.C. dated 14.04.2023 since at that stage he was identified only as a person, who was acquainted with the facts and circumstances of the case. The prosecution has explained that respecting his position as a Chief Minister of NCT of Delhi, the police treaded with trepidation and caution and proceeded to collect the evidence from other persons suspected to be the accused. Consequently, extensive investigations were carried out across India to ascertain the entire web of conspiracy involving numerous persons - The reasons for not proceeding immediately against the petitioner, after registration of the FIR is thus, well explained by the CBI and does not reek of malice. It is correct and true that the petitioner herein is not an ordinary citizen of this country but is a distinguished holder of Magsaysay Award and a convenor of Aam Aadmi Party. The control and the influence which he has on the witnesses, is prima facie borne out from the fact that these witnesses could muster the courage to be a witness only after the arrest of the petitioner - Also, it establishes that the loop of evidence against the Petitioner got closed after collection of relevant evidence after his arrest. No malice whatsoever, can be gathered from the acts of the respondent. Thus, it cannot be said that the arrest was without any justiciable reasons or was illegal - Petition dismissed. Issues Involved:1. Legality of arrest under Sections 41 and 60A of Cr.P.C.2. Compliance with Section 41A Cr.P.C.3. Grounds for arrest and their justification.4. Allegations of malice in law and ulterior motives behind the arrest.5. Necessity of custodial interrogation and judicial remand.6. Compliance with procedures for arrest and remand as per Cr.P.C.Detailed Analysis:1. Legality of Arrest under Sections 41 and 60A of Cr.P.C.:The petitioner contended that his arrest was in violation of Sections 41 and 60A of Cr.P.C., 1973, asserting that the arrest did not meet the mandatory conditions outlined in these sections. The court examined whether the arrest was necessary to prevent further offenses, ensure proper investigation, prevent tampering with evidence, or ensure the accused's presence in court. The court found that the Investigating Officer (IO) had recorded the reasons for arrest in compliance with the law, and the arrest was not illegal.2. Compliance with Section 41A Cr.P.C.:The petitioner argued that no prior notice under Section 41A Cr.P.C. was given before his arrest, which mandates that a notice be served to the accused to join the investigation. The court noted that the petitioner was initially summoned under Section 160 Cr.P.C. and interrogated for nine hours. Subsequently, the IO sought court permission for further interrogation under Section 41A Cr.P.C. due to the petitioner being in judicial custody in another case. The court held that the IO had followed the procedure and obtained necessary permissions, thus complying with Section 41A Cr.P.C.3. Grounds for Arrest and Their Justification:The petitioner claimed that the grounds for his arrest, such as non-cooperation and evasive replies, were not justifiable. The court reviewed the application for arrest, which detailed the petitioner's alleged involvement in the criminal conspiracy related to the Delhi Excise Policy 2021-22 and the need for custodial interrogation to confront him with evidence and unearth the larger conspiracy. The court found that the grounds for arrest were adequately explained and justified, and the petitioner was not compelled to incriminate himself but to disclose facts within his special knowledge.4. Allegations of Malice in Law and Ulterior Motives Behind the Arrest:The petitioner alleged that his arrest was an 'insurance arrest' to prevent his release from jail and was carried out with malice. The court examined the timeline of the investigation, noting that the petitioner was initially summoned as a person acquainted with the facts and was only identified as an accused after sufficient evidence was gathered over one and a half years. The court found no evidence of malice or ulterior motives, stating that the arrest was based on the collected evidence and the need for further investigation.5. Necessity of Custodial Interrogation and Judicial Remand:The court reviewed the applications for custodial interrogation and judicial remand, which detailed the petitioner's alleged role in the conspiracy, the need to confront him with evidence, and the potential influence he could exert on witnesses and evidence. The court found that the Special Judge had considered all relevant factors, including the case diary, and determined that custodial interrogation and judicial remand were necessary for the investigation.6. Compliance with Procedures for Arrest and Remand as per Cr.P.C.:The court examined whether the arrest and remand procedures followed by the IO and the Special Judge were in accordance with Cr.P.C. The court found that the IO had obtained necessary permissions, recorded reasons for arrest, and followed due process. The Special Judge had also applied judicial mind and considered all relevant material before permitting the arrest and remand. The court concluded that the procedures were duly followed, and the arrest was not illegal.Conclusion:The court dismissed the writ petition, holding that the arrest was not illegal, the procedures for arrest and remand were followed in compliance with Cr.P.C., and there was no evidence of malice or ulterior motives behind the arrest. The pending application, if any, also stood disposed of.