TMI Blog2023 (1) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... es do not authorise detention casually and mechanically; has held that Sections 41 and 41-A are facets of Article 21 of the Constitution; and has issued certain guidelines for avoiding unwarranted arrest, amongst other directions/observations. From various 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. Section 41 Cr.P.C. mandates the concerned officer to record his reasons in writing while making the arrest. Thus, a statutory duty is cast on the officer not only to record the reasons for arrest in writing, but also, if the officer chooses not to arrest - The Apex Court in its judgments in ARNESH KUMAR VERSUS STATE OF BIHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are entitled to be released on bail, pending the hearing and final disposal of the aforesaid petitions on the conditions imposed - petition allowed. - Hon'ble Judges Revati Mohite Dere And Prithviraj K. Chavan, JJ. For the Appellant : Amit Desai, Sr. Advocate, Gopalkrishna Shenoy, Kushal Mor, Rohan Dakshini, Pooja Kothari, Deepa Shetty, Kyrus Modi, Pranav Narsaria, Tejas Popat i/b Rashmikant and Partners and Vikram Choudhary, Sr. Advocate For the Respondents : Raja Thakare, Spl. P.P., Kuldeep S. Patil, Saili Dhuru, Akash Kavade, Siddharth Jagushte and J.P. Yagnik, A.P.P. ORDER REVATI MOHITE DERE, J. 1. By these petitions, preferred under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure ('Cr.P.C.'), the petitioners, who are husband and wife, seek; (i) quashing of the FIR, being No. RCBDI/2019/E/0001 dated 22.01.2019, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sections 41 and 41-A Cr.P.C., inasmuch as, the reasons for arrest have not been spelt out in the arrest memo and that arrest cannot be at the ipse dixit or at the whims and fancies of an officer, as done in the present case; (vii) that the provisions of the Cr.P.C. have not been complied with, as much as, there was no lady officer, as mandated, at the time of her arrest, as is evident from the arrest memo. Learned senior counsel submits that although a lady officer was present at the time of personal search of the petitioner, there is no endorsement that a lady officer was present at the time of petitioner's arrest; (vii) that there is no previous approval as required under the PC Act; (viii) that the remanding court had failed in its duty to consider that there was non-compliance of Sections 41 and 41-A Cr.P.C. and the ratio of the judgments of the Apex Court on this aspect, in particular, the judgment 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 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice on two consecutive days in September 2018, when again he was questioned. 22.09.2018 and 23.09.2018 Petitioner-Chanda Kochhar attended the office of CBI at New Delhi, where she was interrogated. 22.01.2019 The CBI registered a FIR bearing No. RC-BD12019E0001-CBI/BS FC/Delhi, inter alia against Chanda Kochhar and Deepak Kochhar under Sections 120-B and 420 of the IPC and Sections 7, 13(2) r/w 13(1)(d) of the PC Act for the alleged offences during the period 2009-2012. 31.01.2019 The ED registered ECIR/02/HIU/2019 under Sections 3 and 4 of the PMLA Act, alleging that the proceeds of crime were Rs. 1794 Crores. In 2019 Petitioner-Deepak Kochhar attended CBI Office on 15 dates and on 08.05.2019, 14.06.2019, 20.06.2019, 05.07.2019 and 19.08.2019 submitted documents sought for by the respondent No. 1-CBI (more than 2300 pages). The CBI seized documents submitted by the petitioner-Deepak Kochhar on 08.05.2019, vide two seizure memos; on 20.06.2019, vide two seizure memos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition filed by petitioner-Chanda Kochhar, that no coercive steps would be taken against her. 12.02.2021 The Sessions Court granted bail to the petitioner-Chanda Kochhar under Section 88 Cr.P.C. in the PMLA case, referring to the statement of the learned Solicitor General of India. 25.03.2021 Petitioner-Deepak Kochhar was enlarged on bail by this Court (Coram: Prakash D. Naik, J.). 10.01.2022 The Apex Court dismissed the ED's SLP and as such confirmed the order of bail. 27.06.2022 The Petitioner-Chanda Kochhar received a S. 41-A notice dated 27.06.2022 from the CBI, directing her to appear before them on 04.07.2022. However, as the petitioner had a court case before the Hon'ble Bombay High Court on 04.07.2022, she addressed an email to CBI on 01.07.2022 requesting that her appearance be postponed to 08.07.2022. The request of the petitioner was acceded to by CBI vide email dated 04.07.2022. 06.07.2022 Petitioner-Deepak Kochhar received a S. 41-A notice dated 06.07.2022 from the CBI, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er alia holding that the properties in question were not proceeds of crime and were not involved in money laundering. It is also a matter of record that ED has challenged the said order before the Appellate Authority and the said appeal is pending. REASONS: 8. As noted earlier and as agreed between the learned senior counsel for the parties, the aforesaid petitions were heard only with respect to the interim relief sought i.e. for interim bail, on the premise that the petitioners' arrest was illegal, being in contravention of the statutory provisions and the constitutional mandate. 8.1. Before we proceed to decide whether the petitioners' arrest can be said to be illegal, it would be apposite to reproduce the relevant provisions and the relevant judgments on this aspect. 41. When police may arrest without warrant- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) who commits, in the presence of a police officer, a cognizable offence; (b) 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. 41-A. Notice of appearance before police officer.--(1) The police officer shall, in all cases where the arrest of a person is not required under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with the provisions of this Code or any other law for the time being in force providing for arrest. 8.2. The Apex Court in the case of Satender Kumar Antil (Supra), has issued certain directions to investigating agencies and the courts; has discussed arrest in cognizable offences, the mandate of Section 41, effect of its non-compliance while considering the bail application; has issued directions to ensure that police officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically; has held that Sections 41 and 41-A are facets of Article 21 of the Constitution; and has issued certain guidelines for avoiding unwarranted arrest, amongst other directions/observations. 8.3. The relevant paras of Satender Kumar Antil (Supra), with which we are concerned, are reproduced hereinunder: 24. This provision mandates the police 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of 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 CrPC. 8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 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, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions: 11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1) (b)(ii); 11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. ..................... 100. In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments.: 100.1 ...................... 100.2 The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the High Court and the lower Courts in this country must be alive. In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum-the district judiciary, the High Courts and the Supreme Court-to ensure that the criminal law does not become a weapon for the selective h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the accused and bring his movements under restraint to infuse confidence among the terror stricken victims. (ii) The accused is likely to abscond and evade the processes of law. (iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint. (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.... The above guidelines are merely incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person... 30. We once again have occasion to reiterate that the guidelines laid down in Arnesh Kumar (supra) must be followed, without exception . The raison d' tre of the powers of arrest in relation to cognizable offences is laid down in Section 41. Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. The criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the CrPC as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RCBD1/2019/E/0001 dated 22.01.2019 (Videocon Case) 2. Section of Law 120-B r/w 420 IPC Section 7 r/w section 13(2) r/w 13(1)(d) of the PC Act, 1988 3. Name of the SPE/Branch CBI, BSFB, New Delhi 4. Date, time Place of arrest 23.12.2022, 16.30 hrs O/o Head of Branch DIG of Police, Central Bureau of Investigation, Banking Securities Fraud Branch, A Wing, 5th Floor, CBI Head Quarters, Lodhi Road, New Delhi-110003 5. Name, age, Parentage and address of the arrestee Ms. Chanda Kochhar, W/o Shri Deepak Kochhar, 45 CCI Chambers, Church Road, Mumbai. (D.O.B.-17.11.1961) 6. Name Designation of officer effecting arrestee Nitesh Kumar, Dy. Supdt. Of Police, Central Bureau of Investigation, Banking Securities Fraud Branch, New Delhi. 7. Ground of Arrest The accused is an FIR named. She has been not cooperating and disclosing true and full facts of the Case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine whether the reasons for the formation of the belief have a rational connection with the formation of the belief. There must be a direct nexus or live link between the material before the officer and the formation of his belief. Thus, there must be a rational connection between the two. We may note, that 'reason to belief' must be based on credible material and no decision to arrest can be recorded on fancy or whimsical grounds. 8.15. Section 41 Cr.P.C. mandates the concerned officer to record his reasons in writing while making the arrest. Thus, a statutory duty is cast on the officer not only to record the reasons for arrest in writing, but also, if the officer chooses not to arrest. The Apex Court in its judgments in Arnesh Kumar (Supra) and Satender Kumar Antil (Supra), has clearly interpreted Sections 41(1)(b)(i) and (ii) Cr.P.C. It is evident from the said judgments that both the elements, reason to believe and satisfaction for an arrest as mandated in Section 41(1)(b)(i) and Section 41(1)(b) (ii) have to be read together and as such recorded by the concerned officer whilst arresting an accused. The object being to ensure that officers do not arrest the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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) unless such a person is arrested, his presence in the Court whenever required cannot be ensured. 8.18. In the facts, it is evident that the officer, in the arrest memo, in the column, 'Grounds of arrest' has merely stated that 'The accused is an FIR named. She has been not cooperating and disclosing true and full facts of the Case.', which prima-facie appears to be contrary to the facts on record. Nothing specific has been noted/set-out therein, as mandated by Section 41(1)(b) (ii) (a) to (e). The only reason mentioned is that the petitioners have not co-operated and not given true and correct disclosure. The same cannot be a ground for arrest. 8.19. The ground for arresting the petitioners as stated in the arrest memos, is unacceptable and is contrary to the reason(s)/ground(s) on which a person can be arrested i.e. contrary to the mandate of Section 41(1)(b)(ii) (a) to (e). 'Not disclosing true and correct facts' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Supra). 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 ensure to the benefit of an accused. 8.23. In the present case, the reasons recorded by the Officer in the ground of arrest, does not satisfy the tests laid down in Section 41(1)(b)(ii) (a) to (e) of Cr.P.C., for the reasons set-out hereinabove. It does not disclose as to whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The concerned Judge authorising detention, ought to have recorded his own satisfaction, may be, in brief, but the said satisfaction must reflect from his order. A perusal of the order does not conform to the said requirements/directions given by the Apex Court. 8.26. We may note, that we have not gone into the other submissions advanced by Mr. Desai, learned senior counsel appearing for the petitioner-Chanda Kochhar, in particular, the submission, that as per the mandate, a lady officer was not present at the time of the petitioner-Chanda Kochhar's arrest, in view of the finding recorded by us hereinabove. 9. For the reasons set-out hereinabove, the petitioners are entitled to be released on bail, pending the hearing and final disposal of the aforesaid petitions, on the following terms and conditions: ORDER (i) The petitioners-Chanda Kochhar and Deepak Kochhar be released on cash bail in the sum of Rs. 1,00,000/- each, for a period of two weeks; (ii) The petitioners shall within the said period of two weeks, furnish P.R. Bond in the sum of Rs. 1,00,000/- each, with one or more sureties in the like amount, to the satisfaction of the Special Judge, CBI; (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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