TaxTMI 
TaxTMI 
2024 (9) TMI 780
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....r in which the present proceedings have arisen. 3.1. The Appellant is a public representative and has been elected thrice the Chief Minister of the Government of National Capital Territory of Delhi (hereinafter 'GNCTD'). He also happens to be the National Convenor of Aam Aadmi Party, a political party in India. 3.2. Central Bureau of Investigation (hereinafter 'CBI') - the Respondent registered an FIR No. RC0032022A0053 (hereinafter 'FIR'), on 17.08.2022 under Sections 120B read with Section 477A of the Indian Penal Code, 1806 (hereinafter 'IPC') and Section 7 of the Prevention of Corruption Act, 1988 (hereinafter 'PC Act') against various persons. The FIR alleged irregularities, falsification, undue advantage, and a conspiracy among the persons holding positions of responsibility within the GNCTD, in framing and implementing the Excise Policy for the year 2021-2022 (hereinafter 'Excise Policy'). However, the Appellant's name did not figure in the FIR. 3.3. On 21.03.2024, the Directorate of Enforcement (hereinafter 'ED'), arrested the Appellant in the purported exercise of its power under Section 19 of the Prevention of Money Laundering Act, 2002. Subsequently, this Court ....
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....ched the High Court under Section 439 CrPC, seeking regular bail in connection with the subject FIR. On 05.07.2024, when the Bail Application came up for hearing, the High Court issued notice and renotified it to be heard on 17.07.2024, along with the Writ Petition challenging the very arrest of the Appellant. 3.8. The High Court extensively heard the matter on 17.07.2024 and reserved judgement in the Writ Petition. The Bail Application was renotified for further hearing on 29.07.2024, which was also reserved. Finally, on 05.08.2024, the High Court vide the impugned judgement and order upheld the arrest of the Appellant by the CBI and congruously denied him regular bail, with liberty to approach the Trial Court for such relief. 3.9. As regard to the legality of the Appellant's arrest, the High Court upheld the same on the following broad points: (i) The five circumstances delineated under Section 41(1)(b) of the CrPC apply only to arrests made without a warrant and does not pertain to arrests made under the aegis of Section 41(2) of the CrPC, which is an arrest upon the order of a court; (ii) The arrest was made in accordance with Section 41(2) of the CrPC; and (iii) The plea....
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....in a case of cognizable offence. This was fortified by contending that none of the applications moved by the CBI seeking remand, sought to invoke Section 41(2). These violations, Learned Senior Counsel contended, were squarely against the dictum of this Court in Arnesh Kumar v. State of Bihar Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and a plethora of other subsequent decisions. 6. Dr. Singhvi further argued that the Appellant deserves to be granted bail, as his continued incarceration is not necessitated, given that the entire material is in the safe custody of the CBI. He also emphasized that the Appellant has been granted both interim and regular bail in the ED matter by this Court, where the conditions are stricter, thus demonstrating that he would invariably meet the threshold explicated by the 'triple test' in the CBI matter as well: he has no criminal antecedents, is not a flight risk, and poses no threat of tampering with witnesses or evidence. He also assailed that the High Court ought not to have relegated the Appellant to the Trial Court, considering that it exercises concurrent jurisdiction under Section 439 of the CrPC. This measure, he underscored, was akin ....
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....ance envisaged under Section 41A (4) becomes inapplicable, and therefore, the requirement of notice thereunder was not necessary. In regard to the misgivings on the erroneous application of Section 41(2) of the CrPC, he explained that the High Court had inadvertently mistyped the provision and that it ought to be read as Section 41(1)(b)(ii) of the CrPC instead. 10. While strongly opposing the Appellant's prayer for bail, Mr. Raju contended that there was a likelihood of witness intimidation, should the Appellant be released on bail, resulting in the trial proceedings being severely derailed. Mr. Raju also alluded to certain instances having occurred in the context of M/s. Mahadev Liquors of Punjab, thus pointing to the influence exerted by the Appellant, whose political outfit is ruling more than one State. 11. Mr. Raju vehemently pressed into aid his preliminary objection to relegate the Appellant to the Trial Court, who he stressed ought not to have approached the High Court directly, notwithstanding the concurrent jurisdiction under Section 439 of the CrPC. He urged that the Appellant should not be granted any special treatment merely because of the position of power he h....
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....finitive conclusion. A. Whether the procedure undertaken in arresting the Appellant was illegal? 16. The primary basis for the Appellant's challenge rests on the contention that the procedure for arrest, as outlined under Sections 41(1)(b)(ii) and 41A of the CrPC, was not complied with. For the purpose of analysing the legality of the Appellant's arrest, there are two key aspects which we propose to examine separately, namely: (i) whether the issuance of a notice under Section 41A of the CrPC was duly complied with, in the context of the present factual scenario; and (ii) whether Section 41(1)(b)(ii) of the CrPC is applicable in the facts and circumstances of this case. i. Compliance with Section 41A of the CrPC 17. Section 41A of the CrPC pertains to the issuance of a notice by a police officer to an individual when their arrest is not warranted under Section 41(1) of the CrPC, but their presence is still required before the investigating authority. Issuance of a notice under Section 41A(1) therefore would be imminent, when there is a complaint made, credible information received or there is a reasonable suspicion of the individual having committed a cognizable off....
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....nation, as there was reasonable suspicion of his involvement in the commission of the offence. Upon considering these reasons, the Trial Court, by its order dated 24.06.2024, allowed the CBI's application seeking to interrogate the Appellant. 20. At this juncture, it is pertinent to first address the Appellant's allegations regarding the CBI's non-compliance with Section 41A of the CrPC, particularly concerning the issuance of notice or lack thereof. In this regard, it is crucial to draw reference to the language and intent of the provision, which aims to ensure an individual's appearance through the issuance of a notice. The provision, however, does not outline any express procedure to be undertaken where the individual in question is already incarcerated. It is to be remembered that the Court is, in a way, the guardian of an undertrial, while he is in judicial custody. That being so, there could possibly be no other way to secure the Appellant's physical presence for the purpose of further investigation, except to seek prior permission of the Trial Court for his interrogation. 21. In fact, given what was contended by the Appellant, it must be explicated that Section 41A doe....
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....egedly given evasive responses during questioning and that custodial interrogation was necessary to confront him with evidence and uncover a purported larger conspiracy involving the accused persons in the implementation of the excise policy. The Trial Court, after considering these reasons, allowed the CBI's application for the Appellant's arrest and issued production warrants on the same day. 26. In this respect, our analysis is confined to assessing whether Section 41A(3) was violated, thereby rendering the arrest per se illegal. First, it is trite law that there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of a Magistrate. Thus, there is no impediment in terms of arresting a person already in custody for the purposes of investigation, whether for the same offence or for an altogether different offence. Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141. The Appellant's arrest by the CBI was thus entirely permissible, in light of the Trial Court's order dated 25.06.2024. 27. Second, Section 41A(3) allows for arrest, provided the reasons are recorded, justifying the necessity of such a step, a....
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.... committed a cognizable offence 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, if the following conditions are satisfied, namely:- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (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 of....
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....arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC." 33. Given this annotation, while there exists no doubt that the submissions made by the Appellant in regard to the precepts of Section 41(1)(b) are sound, the provision is inapplicable to the vicissitudes of the present factual matrix. Here is a case where the court upon application of judicial mind accorded its approval to the Appellant's arrest for which necessary warrant was issued. There was thus no occasion for the arresting police officer to form an opinion regarding the existence of valid reasons of arrest. The competent court having undertaken such a task, the police officer cannot be expected to sit over the order of the court. 34. Still further, Section 41(1) opens with the expression that 'any police officer may arrest without an order from a Magistrate or without a warrant'. It ne....
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....er 'UAPA') notwithstanding the statutory embargo contained in Section 43-D(5) of that Act, laying down that the legislative policy against the grant of bail will melt down where there is no likelihood of trial being completed within a reasonable time. Union of India v. K.A. Najeeb, AIR 2021 SC 712. The courts would invariably bend towards 'liberty' with a flexible approach towards an undertrial, save and except when the release of such person is likely to shatter societal aspirations, derail the trial or deface the very criminal justice system which is integral to rule of law. 39. It was submitted during these proceedings that the FIR was registered on 17.08.2022, and since then, the chargesheet along with four supplementary chargesheets have been filed. The fourth supplementary chargesheet was filed as recently as 29.07.2024 and we are informed that the Trial Court has taken cognizance of the same. Additionally, seventeen accused persons have been named, 224 individuals have been identified as witnesses, and extensive documentation, both physical and digital, has been submitted. These factors suggest that the completion of the trial is unlikely to occur in the immediate future.....
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....se concerning the consideration of bail should depend upon the filing of a chargesheet. In fact, each case ought to be assessed on its own merits, recognizing that no one-size fits all formula exists for determining bail. 44. An undertrial thus should, ordinarily, first approach the Trial Court for bail, as this process not only provides the accused an opportunity for initial relief but also allows the High Court to serve as a secondary avenue if the Trial Court denies bail for inadequate reasons. This approach is beneficial for both the accused and the prosecution; if bail is granted without proper consideration, the prosecution too can seek corrective measures from the High Court. 45. However, superior courts should adhere to this procedural recourse from the outset. If an accused approaches the High Court directly without first seeking relief from the Trial Court, it is generally appropriate for the High Court to redirect them to the Trial Court at the threshold. Nevertheless, if there are significant delays following notice, it may not be prudent to relegate the matter to the Trial Court at a later stage. Bail being closely tied to personal liberty, such claims should be ....
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....Kant. I am in complete agreement with the conclusion and direction of his Lordship that the appellant should be released on bail. However, on the necessity and timing of the arrest, I have a definite point of view. Therefore, I deem it appropriate to render a separate opinion on the point of necessity and timing of the arrest of the appellant while concurring with the opinion of Justice Surya Kant that the appellant should be released on bail. 2. Leave granted. 3. At the outset, a brief recital of the relevant dates and the attending facts as borne out from the record may be noted. 3.1. A case was registered by the CBI on 17.08.2022 being RC No. 0032022A0053 under Section 120B read with Section 477A of IPC and Section 7 of the PC Act. The aforesaid case was registered on the basis of source information as well as on the basis of a written complaint received from Shri Praveen Kumar Rai, Director, Ministry of Home Affairs, Government of India dated 22.07.2022. This letter also conveyed complaint dated 20.07.2022 of Shri Vinay Kumar Saxena, Lieutenant Governor of the Government of National Capital Territory of Delhi. The complaint sought for enquiry into the irregularities....
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....e notices issued under Section 50 were illegal, bad in law and invalid. 5. Be that as it may, appellant was arrested by the ED on 21.03.2024. Appellant challenged his arrest before the High Court by filing a petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. However, the same was dismissed by the High Court on 09.04.2024. 6. It is stated that the competent authority accorded permission under Section 17A of the PC Act on 23.04.2024 whereafter CBI proceeded to investigate the role of the appellant in the CBI case. However, it is not mentioned as to when such permission was sought for. 7. In so far arrest of the appellant in the PMLA case is concerned, appellant carried his challenge from the High Court to this Court. On 10.05.2024, this Court granted interim bail to the appellant till 02.06.2024 in Criminal Appeal No. 2493 of 2024 in view of the ongoing Lok Sabha elections. On completion of the period of interim bail, appellant surrendered and was taken back into custody. 8. On 20.06.2024, appellant was granted regular bail by the learned Special Judge in the ED case. This bail order was challenged by the ED before the High Court which s....
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....ed in the Assembly Elections of Goa during the year 202122 to meet the election related expenditures of Aam Aadmi Party. He further gave evasive replies regarding his role and the role of other coaccused in respect of criminal conspiracy hatched. His replies are contrary to the oral and documentary evidence gathered by CBI during the investigation. He is not disclosing the facts truthfully, despite being confronted with the incriminating evidence and also concealing the vital facts, which are exclusively in his knowledge. These facts are relevant for the purpose of the investigation to reach to the just conclusion of the case. 11.2. On 29.06.2024, learned Special Judge remanded the appellant to judicial custody till 12.07.2024. 12. Criminal Appeal No. 2493 of 2024 was heard by this Court in the meanwhile. On 12.07.2024, a detailed judgment was passed. A bench of two Hon'ble Judges of this Court framed the following three questions of law for consideration by a larger bench : (a) Whether the "need and necessity to arrest" is a separate ground to challenge the order of arrest passed in terms of Section 19(1) of the PML Act? (b) Whether the "need and necessity ....
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....e learned Special Judge in the ED case. On oral mentioning, this bail order was stayed by the High Court on 21.06.2024. 18. It was thereafter that CBI sought for custody of the appellant in the CBI case which was allowed by the learned Special Judge on 24.06.2024. 19. Finally, this Court granted interim bail to the appellant in the PMLA case on 12.07.2024. 20. CBI filed the fifth and final chargesheet in the CBI case on 29.07.2024 wherein appellant has been named as an accused. 21. Since appellant's arrest by the ED, bail granted by the learned Special Judge and stay of bail by the High Court in the PMLA case are subject matter of parallel proceedings where appellant has been granted interim bail by this Court, I would refrain from commenting thereon. Therefore, I will confine this opinion only to two aspects: arrest of the appellant and the judgment of the High Court. Arrest of the appellant by the CBI: necessity and timing 22. In so far arrest of the appellant by the CBI is concerned, it raises more questions than it seeks to answer. As already noted above, CBI case was registered on 17.08.2022. Till the arrest of the appellant by the ED on 21.03.2024, CBI did n....
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....e compelled to be a witness against himself. This Court has held that such a protection is available to a person accused of an offence not merely with respect to the evidence that may be given in the court in the course of the trial, but is also available to the accused at a previous stage if an accusation has been made against him which might in the normal course result in his prosecution. Thus, the protection is available to a person against whom a formal accusation has been made, though the actual trial may not have commenced and if such an accusation relates to the commission of an offence which in the normal course may result in prosecution. An accused has the right to remain silent; he cannot be compelled to make inculpatory statements against himself. No adverse inference can be drawn from the silence of the accused. If this is the position, then the very grounds given for arrest of the appellant would be wholly untenable. On such grounds, it would be a travesty of justice to keep the appellant in further detention in the CBI case, more so, when he has already been granted bail on the same set of allegations under the more stringent provisions of PMLA. 26. That apart, the....
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.... 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 the Station without permission would do. 28. In the case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1, this Court emphasized that investigation must be fair and effective. Investigation should be conducted in a manner so as to draw a just balance between a citizen's right under Articles 19 and 21 of the Constitution of India and the expansive power of the police to make investigation. Concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. 29. This Court in the case of Arnesh Kumar Vs. State of Bihar ( 2014 ) 8 SCC 273, while examining the provisions of Sections 41 and 41A Cr.P.C. observed that arrest brings humiliation, curtails free....
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....l the necessity to arrest the appellant for 22 long months, I fail to understand the great hurry and urgency on the part of the CBI to arrest the appellant when he was on the cusp of release in the ED case. The substantive charge against the appellant is under Section 477A IPC which deals with falsification of accounts and if convicted carries a punishment of imprisonment for a term which may extend to seven years or with fine or with both. The appellant has also been charged under Section 7 of the PC Act which deals with offence relating to a public servant being bribed. Here the punishment, if convicted, is imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Without entering into the semantics of applicability of Section 41(1)(b)(ii) and Section 41A Cr.P.C. as explained by this Court in Arnesh Kumar (supra), timing of the arrest of the appellant by the CBI is quite suspect. 32. CBI is a premier investigating agency of the country. It is in public interest that CBI must not only be above board but must also be seem to be so. Rule of law, which is a basic feature of our constitutional republic, ma....
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....efit of the appellant, to first approach the Court of Sessions Judge. 7. In these circumstances, this Bail Application is hereby disposed of with the liberty to the appellant to approach the learned Special Judge for regular bail. 34.1. After observing that it would be more to the benefit of the appellant if the appellant approaches the learned Special Judge first for bail more so when the chargesheet has been filed, the High Court relegated the appellant to the forum of the learned Special Judge though both the Court of the Special Judge and the High Court have concurrent jurisdiction in the matter. 35. If indeed the High Court thought of remanding the appellant to the forum of the Court of Special Judge, it could have done so at the threshold itself. After issuing notice, after hearing the parties at length and after reserving the judgment for about a week, the above order was passed by the High Court. Though couched in a language which appears to be in favour of the appellant, in practical terms it has only resulted in prolonging the incarceration of the appellant for a far more longer period impacting his personal liberty. 36. In somewhat similar circumstances....
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....more stringent provisions of PMLA, further detention of the appellant by the CBI in respect of the same predicate offence has become wholly untenable. In such circumstances, asking the appellant or relegating the appellant to approach the trial court, then to the High Court and then to this Court for a fresh round of bail proceedings in the CBI case after he had already traversed the same route in the PMLA case would be nothing but a case of procedure triumphing the cause of justice. In this connection, it would be apt to refer to the observations of this Court in the case of Manish Sisodia Vs. CBI, Criminal Appeal No. 3296 of 2024, decided on 09.08.2024: 32. It could thus be seen that this Court had granted liberty to the appellant to revive his prayer after filing of the chargesheet. Now, relegating the appellant to again approach the trial court and thereafter the High Court and only thereafter this Court, in our view, would be making him play a game of "Snake and Ladder". The trial court and the High Court have already taken a view and in our view relegating the appellant again to the trial court and the High Court would be an empty formality. In a matter pertaining to the l....
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....in straightforward open and shut cases, bail is not being granted by the trial courts and by the High Courts. It has been held as under: 53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very wellsettled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of nongrant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception". 39. Bail jurisprudence is a facet of a civilised criminal justice system. An accused is innocent until proven guilty by a competent court following the due process. Hence, there is presumption of innocence. Therefore, this Court has been reiterating again and again the salutary principle that bail is the rule and ....