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2024 (2) TMI 1428
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....by the learned Special Judge, CBI. 2. The brief facts necessary to decide this petition are as under. On 8.12.2017, CBI registered preliminary inquiry bearing No. PE.BDI/2017/E0001 in view of the information that during the period from 2009 to 2012, the officials of ICICI Bank had sanctioned credit facilities/ high value loan to the Videocon Group of Companies promoted by Venugopal Dhoot, in violation of the Banking Regulation Act under RBI guidelines and the credit policy of the Bank. The petitioner Chanda Kochhar was one of the members of the sanctioning committee. It is alleged that as a part of quid pro quo, Mr. Dhoot made investment of Rs. 64 Crores in Nu Power Renewables Pvt. Ltd. (NRPL) through M/s. Supreme Energy Private Limited (SEPL), and also to Pinnacle Energy Trust managed by the petitioner Deepak Kochhar, through circuitous route. It is also alleged that the flat at CCI Chambers owned by the Videocon Group was sold to the family trust of Deepak Kochhar for Rs. 11 lakhs, though the value of the flat was Rs. 5.25 Crores. 3. The preliminary inquiry revealed that the petitioner Chanda Kochhar had abused her official position in sanctioning loan to M/s. VIEL and got ille....
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....r had sought to produce detail notes prepared by her, however, the same were not accepted and she was not allowed to make it part of the statement. 8. Mr. Desai, learned Senior Counsel submits that both the petitioners had also co-operated with the other investigating agency i.e. Enforcement |Directorate ( ED) investigating offences under PMLA. They were interrogated and their statements were recorded on several dates. Hence, the contention that the petitioners have not been co-operating is baseless. Even otherwise, the petitioners have right to remain silent and their silence cannot be construed as noncooperation. 9. Learned counsel for the petitioner submits that the adjudicating authority vide detail order dated 06.11.2020 had accepted the explanation given by the petitioner and held that the properties alleged to be illegal gratification were not proceeds of crime and lifted the provisional attachment order passed by the E. D. This Court (Coram : Prakash Naik J.) while considering the bail application of Deepak Kochhar has set out in detail the explanation given by the petitioner in the course of the investigation and granted bail to Deepak Kochhar. The challenge to the said ....
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.... and that the co-accused V.N.Dhoot had not given satisfactory answers. Hence they were required to be confronted with each other. He submits that the Court cannot go into the sufficiency of the material and cannot substitute its objective opinion for the subjective satisfaction. He further submits that the first remand report submitted before the Special Judge incorporated the reasons. The Special Judge had also perused the case dairy and only upon being satisfied with the reasons recorded in the case diary, the Special Judge had passed the remand order. 13. Mr. Kuldip Patil, learned Counsel for CBI contends that the arrest of the petitioner Chanda Kochhar was effected in presence of a woman constable Sarita Kumari, which fact is also reflected in the personal search memo as well as the case dairy. The arrest was effected before the sunset, and hence the decisions in Kavita and Alexandar (supra) are not applicable. He further submits that the grounds of arrest were informed to the petitioners and even otherwise the petitioners were well aware of the charges leveled against them. He submits that the respondent CBI has followed the legal mandate, as well as the procedural safeguards....
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....ice officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing, Similarly, the police officer shall record reasons when he/she chooses not to arrest. There is no requirement of the aforesaid procedure when the offence alleged is more than seven years, among other reasons. 25. The consequence of non-compliance with Section 41 shall certainly enure to the benefit of the person suspected of the offence. 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 Se....
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....ection 57 CrPC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey: 8.1. ........................... 8.2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the 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 willrecord his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be....
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....aid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41-ACrPC 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 Secti....
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....t in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. 100.3 The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail." (emphasis supplied) 18. The scope and ambit of Section 41 and 41A as well as the dictum of the Apex Court in Satyender Kumar Antil, Arnab Goswami etc was considered by the co-ordinate Bench of this Court while granting interim bail to the petitioners for non compliance of the mandate of Section 41A. We are conscious of the fact that the interim order does not substantially decide the rights, liability or lis between the parties and that the interim order is always subject to the final order, which will adjudicate the final rights and liabilities of the parties. Hence, there can be no gainsaying that the prima facie observation or tentative view expressed at interim stage is not binding at the final adjudication. 19. Nevertheless, a perusal of order dated 09.01.2023 reveals that while considering the plea for interim bail pending final disposal of the petiti....
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...., to be casual, mechanical and perfunctory, clearly without application of mind. The ground for arrest of the petitioners mentioned in the arrest memos is in clear breach of mandatory provisions of Section 41 and 41-A and 60-A of Cr.P.C. 8.22. As a Constitutional Court, we cannot be oblivious to the contravention of the mandatory provisions of law and the judgments of the Apex Court, in particular, the directions given in Arnesh Kumar (Supra) and Satender Kumar Antil (Supr). It is expected that the directions and provisions be complied with by the concerned officers/courts, in letter and spirit. Needless to state, that personal liberty of an individual is an important aspect of our constitutional mandate. Merely because an arrest can be made because it is lawful, does not mandate that arrest must be made. As emphasized by the Apex Court, a distinction must be made between the existence of the power to arrest and the justification for exercise of it. It is further observed that if arrests are made in a routine manner, it could cause incalculable harm to the reputation and self-esteem of a person and that presumption of innocence is a facet of Article 21, which would enure to the b....
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....ly interrogated. In the meantime, the co-accused V.N.Dhoot was also interrogated with respect to the allegations of quid pro qua of Rs. 64 Crores and transfer of flat owned by Videocon to Quality Advisory Trust of Deepak Kochhar. 24. On 15.12.2022, the Investigating Officer issued notices under Section 41A to the petitioners as well as to the co-accused V.N.Dhoot, on the ground that there were several inconsistencies in their statements which were not satisfactorily answered and it was necessary to call and confront them with one another for proper investigation and for taking the case to its logical end. 25. Mr. V.N.Dhoot was interrogated on 22.12.2022, and the petitioners had expressed their inability to appear on the scheduled date as they had to attend the hearing of another matter listed before this Court. The date of appearance was fixed on 23.12.2022. Both the petitioners appeared before the Investigating Officer on 23.12.2022 at about 2.00 p.m. They were interrogated and on the same date, at about 4.30 p.m. they were placed under arrest. 26. The reasons for the arrest as recorded in the case dairy are that (1) The petitioners are not cooperating with the investigation (2....
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.... Regulations and Guidelines since the year 2009 to 2012 was registered in the year 2017. The petitioners were questioned in the course of the preliminary inquiry, and subsequently the FIR was registered on 22.01.2019. The petitioners were named as accused in the said FIR for the alleged offences of criminal conspiracy and cheating. Despite the gravity of the offence, the petitioners were not interrogated or summoned for a period of over three years from the date of registration of the crime. They were served with notice under Section 41A dated 27.06.2022 thereby indicating that their arrest was not required in the said crime under the provisions of sub-section (1) of Section 41 Cr.P.C. The petitioners complied with the terms of the notice and appeared before the Investigating Officer and were duly interrogated. Furthermore, in compliance with the notice dated 15.12.2022, under Section 41A, the petitioners appeared before the Investigating Agency on 23.12.2022. It is on this date that they were placed under arrest, on the ground of non co-operation and purportedly to unearth the entire gamut of conspiracy which led to sanctioning of term loan of Rs. 1875 Crores to financially beleag....