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2023 (1) TMI 1309 - HC - Money LaunderingGrant of Interim Bail - Money Laundering - proceeds of crime - violation of Sections 41, 41-A and 60-A Cr.P.C. - 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? - HELD THAT - The Apex Court in the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. 2022 (8) TMI 152 - SUPREME COURT , 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. 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 BIHAR ANR 2014 (7) TMI 1143 - SUPREME COURT and SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. 2022 (8) TMI 152 - SUPREME COURT , 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 accused unnecessarily and the Magistrates do not authorise detention casually and mechanically. 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 must be satisfied that a person has committed a cognizable offence, punishable with imprisonment for a term which may be less than seven years or which may extend to the said period with or without fine, and that there is a necessity for an arrest - 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. 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. 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. It does not disclose as to whether the arrest was necessary for one or more purpose(s) as envisaged in the said provision - 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. The petitioners are entitled to be released on bail, pending the hearing and final disposal of the aforesaid petitions on the conditions imposed - petition allowed.
Issues Involved:
1. Quashing of the FIR under Sections 120B and 420 of the IPC and Sections 7, 13(2) r/w 13(1)(d) of the PC Act. 2. Quashing of the illegal arrest being violative of Sections 41 and 41-A of Cr.P.C. 3. Quashing of the remand orders dated 24.12.2022 and 26.12.2022. 4. Interim relief for release from custody pending the hearing and final disposal of the petitions. Issue-wise Detailed Analysis: 1. Quashing of the FIR: The petitioners, husband and wife, sought quashing of the FIR registered under Sections 120B and 420 of the IPC and Sections 7, 13(2) r/w 13(1)(d) of the PC Act. The FIR was related to alleged offenses during the period 2009-2012. The court did not delve deeply into this issue in the interim order, focusing instead on the legality of the arrest. 2. Quashing of the Illegal Arrest: The petitioners argued that their arrest was illegal and arbitrary, violating the constitutional mandate and statutory provisions of Sections 41 and 41-A of Cr.P.C. The court examined whether the arrest was in compliance with these sections and relevant judicial precedents. - Legal Provisions and Precedents: The court referred to Sections 41 and 41-A of Cr.P.C., which mandate that arrests should not be made arbitrarily and that reasons for arrest must be recorded in writing. The judgments in Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. CBI were cited, emphasizing that arrests should not be made casually and that the reasons must be documented. - Grounds of Arrest: The arrest memos stated that the petitioners were not cooperating and not disclosing true and full facts of the case. The court found this reason insufficient and contrary to the mandate of Sections 41 and 41-A, as it did not meet the criteria set out in these sections. - Constitutional Safeguards: The court highlighted that the right against self-incrimination is provided under Article 20(3) of the Constitution. It noted that merely because an accused does not confess, it cannot be said that they are not cooperating with the investigation. - Judicial Scrutiny: The court emphasized that it is the duty of the judicial officer authorizing detention to ensure that the arrest is legal and in accordance with the law. The remand orders did not reflect the necessary satisfaction required under Section 41. 3. Quashing of the Remand Orders: The petitioners sought quashing of the remand orders dated 24.12.2022 and 26.12.2022. The court found that the Special Judge had not recorded the necessary satisfaction as required by law before authorizing the detention of the petitioners. The court noted that the remand orders did not conform to the requirements and directions given by the Supreme Court. 4. Interim Relief for Release from Custody: The court granted interim relief, ordering the release of the petitioners on bail pending the hearing and final disposal of the petitions. The conditions for bail included furnishing a cash bail of Rs. 1,00,000 each, cooperating with the investigation, and not tampering with evidence or influencing witnesses. Conclusion: The court held that the arrest of the petitioners was not in accordance with the law, specifically Sections 41, 41-A, and 60-A of Cr.P.C. The reasons for arrest were found to be insufficient and contrary to the legal mandate. The court granted interim bail to the petitioners, emphasizing the importance of personal liberty and the need for judicial officers to ensure compliance with the law when authorizing detention. The writ petitions and interim applications were scheduled to be listed for further hearing on 06.02.2023.
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