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2023 (1) TMI 1309
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.... registered under Sections 120B and 420 of the Indian Penal Code ('IPC') and Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act ('PC Act'); (ii) quashing of their illegal arrest being violative of Sections 41 and 41-A of Cr.P.C.; and (iii) quashing of the remand orders dated 24.12.2022 and 26.12.2022 passed by the learned Special CBI Judge, Mumbai. 2. By way of interim relief, the petitioners seek their release from custody pending the hearing and final disposal of the petitions. 3. The petitions, as agreed between the parties, are heard only for the limited purpose for considering whether the arrest of the petitioners was illegal i.e. contrary to the constitutional mandate and statutory provisions and consequently, whether the petitioners are entitled to be released on interim bail. CRIMINAL WRIT PETITION/STAMP/22494/2022 4. Mr. Amit Desai, learned senior counsel appearing for the petitioner-Chanda Kochhar submits; (i) that the respondent No. 1-CBI has, with blatant disregard to the rule of law, illegally and arbitrarily arrested the petitioner in clear contravention of the constitutional mandate and the provisions of Cr.P.C., pertaining....
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....udgment in Arnesh Kumar v. State of Bihar (2014) 9 SCC 273 and Satender Kumar Antil v. CBI (2022) 10 SCC 51. 4.1. Learned senior counsel, in support of his submissions, relied on the several judgments, in particular, the following judgments: (1) Satender Kumar Antil v. CBI (Supra) (2) Santosh v. State of Maharashtra (2017) 9 SCC 714 (3) Lalita Kumari v. Govt. of Uttar Pradesh (2014) 2 SCC 1 (4) D.K. Basu v. State of West Bengal (1997) 1 SCC 416 (5) Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260 (6) Mohd. Zubair v. State (NCT of Delhi) (7) Arnesh Kumar v. State of Bihar (Supra) (8) Arnab Manoranjan Goswami v. State of Maharashtra (2021) 2 SCC 427 CRIMINAL WRIT PETITION/STAMP/22495/2022 5. Mr. Choudhary, learned senior counsel appearing for the petitioner-Deepak Kochhar adopted the submissions so canvassed by Mr. Desai. He submitted that even in the petitioner's case, there is non-compliance of the mandate of Sections 41 and 41-A of Cr.P.C. He too submitted that there was absolutely no justification for the respondent No. 1-CBI to arrest the petitioner, as he too had cooperated with the in....
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....ochhar on 08.05.2019, vide two seizure memos; on 20.06.2019, vide two seizure memos; and on 19.08.2021 vide a seizure memo. 01.11.2019 The Petitioner-Chanda Kochhar, suo moto addressed an e-mail dated 01.11.2019 to respondent No. 1-CBI requesting for a meeting on a date and time convenient to them, to present true, correct and full facts of the matter, in their right perspective.However, there was no response from respondent No. 1 to this email. 2019, 2020 and 2021 Petitioners were not summoned by the CBI during the said period. During the period 2019-2020 Petitioner-Chanda Kochhar was, however, summoned by ED, pursuant to which, she remained present in the ED Office on the following dates: 01.03.2019, 02.03.2019, 03.03.2019, 04.03.2019, 13.05.2019, 14.05.2019, 15.05.2019, 16.05.2019, 17.05.2019, 28.06.2019, 15.07.2019, 16.07.2019, 17.07.2019, 14.10.2020, 19.10.2020 and 22.10.2020. In addition to appearing on the said dates, petitioner-Chanda Kochhar also provided documents to ED on 16.03.2019 (206 pages), 12.04.2019, 14.05.2019 (446 pages), 08.06.2019 (11 pages), 13.06.2019, 22.06.2019, 03.09.2019, 14....
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....22/22.12.2022/23.12.2022 The next S. 41-A notice that the petitioner-Chanda Kochhar received was dated 15.12.2022, whereby she was directed to appear before the CBI on 19.12.2022. Since the petitioner's husband-Deepak Kochhar had also been summoned, and on the same date a part-heard matter was being heard by the Division Bench of the Bombay High Court, the petitioner-Deepak Kochhar requested accommodation. This request made by the petitioner-Deepak Kochhar was acceded to by CBI and he was further informed that his wife (Chanda Kochhar) could travel with him and appear before CBI on 22.12.2022/23.12.2022. However, as the petitioner's husband's matter was still continuing and a hearing was also kept for 22.12.2022, a request was made to the officer of CBI that the petitioners be permitted to appear before CBI on 23.12.2022 and the same was acceded to. Accordingly, the petitioners remained present before the CBI on 23.12.2022 at 12 noon at New Delhi where they were made to wait, and thereafter, both were arrested. 7.1. After the petitioners' arrest, they were remanded to CBI custody by the learned Special Judge vide orders dated 24.12.2022 and 26.12.2022. Present....
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.... (ii) the police officer is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured; and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or....
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.... to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice. "46. Arrest how made.-(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the....
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..... Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail. 26. Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer. 27. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273: "7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arreste....
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.... arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused. 8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police o....
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....g; 11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. 12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine." 28. We only reiterate that the directions aforesaid ought to be complied with in letter and spir....
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....1A of the Code. Any non-compliance would entitle the accused for grant of bail." (emphasis supplied) 8.4. In Arnab Manoranjan Goswami v. State of Maharashtra (2021) 2 SCC 427, the Apex Court in para 67 has held as under: "67. Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC --or prevent abuse of the process of any Court or otherwise to secure the ends of justice. Decisions of this court require the High Courts, in exercising the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in ensuring the due investigation of crime is protected by ensuring that the inhere....
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....sure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting." 8.5. In Santosh v. State of Maharashtra (2017) 9 SCC 714,: (2021) 2 SCC 427, the Apex Court in para 6 has observed as under: "6. It appears, the IO was of the view that the custody of the Appellant is required for recording his confessional statement in terms of what the co-accused had already stated in the Statement Under Section 161 of the Code of Criminal Procedure, 1973. The IO was of the opinion that the Appellant was not cooperating because he kept reiterating that he had not purchased the food-grains. The purpose of custodial interrogation is not just for the purpose of confession. The right against self-incrimination is provided for in Article 20(3) of the Constitution. It is a well settled position in ....
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.... 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 bonafides 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. Except in heinous offences, an arrest must be avoided if a Police Officer issues notice to person to attend the Station House and not to leave Station without permission would do". (emphasis supplied) 8.7. In Mohd. Zubair v. State (NCT of Delhi), the Apex Court in paras 28, 29, 30 has held as u....
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....he aforesaid judgments, it is evident that arrest is not mandatory; that the notice issued under Section 41-A is to ensure that the persons upon whom notice is served, is required to attend for 'answering certain queries' relating to the case; that if an officer is satisfied that a person has committed a cognizable offence punishable with imprisonment for a term, which may be less than 7 years or which may extend to the said period, with or without fine, an arrest can follow only when there is a reason to believe or suspect that the said person has committed an offence, and there is a necessity for an arrest. 8.9. The conditions or necessity to arrest is stipulated in Section 41(1)(b)(ii) from (a) to (e). The same are reproduced hereunder: "(a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disc....
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.... to accused Yes. 10. Name and particulars of the persons notified about the arrest of the accused and their relations with accused Shri Aditya Kaji, Son-in-Law of Shri Deepak Kochhar (Mobile no. 9987200003) 11. Whether any visible signs of trauma/injury present on the body of the arrestee No 12. Any identification mark of accused (include peculiar physiognomic features also, if present Mole on nose. 13. Whether personal search of the accused carried out. Yes. 14. Any other remarks Nitesh Kumar) Dy. SP/CBI, BS&FC, New Delhi Received copy (Signature/thumb impression of Arrestee)" 8.13. The arrest memo of the petitioner-Deepak Kochhar is identical. The ground of arrest reason given by the respondent No. 1-CBI even in petitioner-Deepak Kochhar's arrest memo is identical. The same reads thus: Ground of Arrest The accused is an FIR named. He has been not cooperating and disclosing True and full facts of the case. 8.14. Does the aforesaid reason/ground of arrest, satisfy the mandate of Sections 41 and 41-A of Cr.P.C. and the directions given and the observations made by the Ape....
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.... "32. We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code. 8.16. In conclusion, in Satender Kumar Antil (Supra), the Apex Court has, in para 100.3, observed that 'the courts will have to satisfy themselves on the compliance of Section 41 and 41-A of the Code. Any non-compliance would entitle the accused for grant of bail. 8.17. Thus, it is clearly evident from the mandate of Section 41 Cr.P.C., that for a cognizable offence, an arrest is not mandatory and the onus lies with the officer who seeks to arrest. For effecting arrest, the officer....
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....e Constitutional Bench judgment in Selvi's case (Supra), Article 20(3) of the Constitution enjoys an "exalted status" and serves as an essential safeguard against torture and coercive measures used by investigating officers. 8.20. Courts have time and again re-iterated the role of courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment. 8.21. The facts reveal that the petitioners after registration of PE in December 2017 had reported to the CBI, pursuant to the summons issued; that they not only appeared but also submitted documents, details of which are mentioned in the seizure memos, as set-out in the facts stated aforesaid. Admittedly, during the period, 2019 till June 2022, for around four years, neither any summons were issued to the petitioners nor any communication was established by the respondent No. 1-CBI with the petitioners. On 08.07.2022, the petitioners reported to the CBI Office, New Delhi, pursuant to the notice issued under Section 41-A. Thereafter, again Section 41-A notice was issued by the CBI in December 2022, pursuant to which, the petitioners appeared before the CBI on 23.12.2022, when they came to....
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....dingly, in the facts, we hold that the petitioners' arrest is not in accordance with law. Thus, non-compliance of the mandate of Section 41(1)(b)(ii), Section 41-A and Section 60-A of Cr.P.C. will enure to the benefit of the petitioners, warranting their release on bail. We may also note that even the learned Special Judge has overlooked the mandate of law as well as the dicta laid down by the Supreme Court in Arnesh Kumar (Supra) and Satender Kumar Antil (Supra). It is incumbent on the judicial officer authorising detention under Section 167 Cr.P.C., to be first satisfied that the arrest made is legal and in accordance with law and that all the constitutional rights of the person arrested, are satisfied. The same is not an empty formality. If the arrest effected, does not satisfy the requirements of Section 41 of Cr.P.C., the concerned court is duty bound not to authorise further detention of the accused and release the accused forthwith. Infact, when an accused is arrested and produced before the concerned court, it is the duty of the said Judge to consider whether specific reasons have been recorded for arrest, and if so, prima facie, whether those reasons are relevant and w....