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TMI Blog2024 (8) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... for declaration of the arrest of the Petitioner on 26.04.2024 and all subsequent remands and his incarceration in jail, as illegal. 2. To succinctly put forth the factual matrix, it is stated in the Petition that the petitioner is Ramon Magsaysay Award winner and is known for his social work and is three times elected Chief Minister of Government of National Capital Territory of Delhi. He is the National Convenor of the political party viz., Aam Aadmi Party. 3. An FIR bearing No. RC0032022A0053 was registered under Sections 120B read with Section 477A of the Indian Penal Code, 1860 (hereinafter referred to as "IPC, 1860") and Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "PC Act, 1988") at Police Station Central Bureau of Investigation, ACB, New Delhi, was registered against him in regard to the Excise Policy, 2021-2022. 4. The respondent/CBI has filed the Chargesheet against seven accused persons, out of which, five were charge-sheeted without arrest and the other two i.e., Vijay Nair and Abhishek Boinpally had been granted regular bail by the Special Judge vide Order dated 14.11.2022 passed. Moreover, the regular bail was also granted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that no doubt, serious accusations have been made against the Appellant, but he has not been convicted, he does not have any criminal antecedents, he is not a threat to the Society. The investigation in the present case (PMLA) has remained pending since August, 2022. Arvind Kejriwal was arrested under Section 19 of PMLA, 2002 on 21.03.2024. More importantly, legality and validity of the arrest itself is under challenge (before the Apex Court) which was yet to be finally decided. The fact situation cannot be compared with harvesting of crops or plea to look after business affairs. In this background, it was observed that once the matter is sub judice and the questions relating to legality of arrest are under consideration, a more holistic and libertarian view was justified in the background that the 18th Lok Sabha General Elections are being held, and granted interim Bail till 01.06.2024 to the Petitioner by the Apex Court in the PMLA matter, vide Order dated 10.05.2024. 12. It is submitted that on 20.06.2024, the learned Special Judge admitted the petitioner to regular bail in the PMLA case. Against the Order dated 20.06.2024 passed by the Special Judge in I.A. No. 92/2024, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by the Apex Court in the decisions of Chanda Kocchar vs. CBI, 2023 SCC OnLine Bom 72, Lalita Kumari vs. Govt. of U.P., (2014) 2 SCC 1, Joginder Kumar vs. State of U.P., (1994) 4 SCC 260, Arnab Manoranjan Goswami vs. State of Maharashtra, (2021) 2 SCC 427 and Satender Kumar Antil vs. Central Bureau of Investigation, (2022) 10 SCC 51; (iv) that the petition raises important question of law as to whether a person in judicial custody be arrested under the guise of S.41 (1) (b) (ii) Cr.P.C. when the offence alleged against him is punishable with an imprisonment upto 7 years; (v) that the FIR was registered by the CBI on 17.08.2022 and the investigations were being carried out since last about two years. No new evidence or material has been collected or indicated in the remand Application or in the arrest memo/grounds of arrest since he was examined under S. 160 Cr.P.C. on 16.04.2023 i.e., more than one year back, which justified his arrest. All the facts and allegations made in the remand Application of the CBI, were part of the Chargesheets dated 24.11.2022, 25.04.2023 and 06.07.2023. (vi) that in the remand Application, the respondent/CBI relied upon the statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present petition. 19. The facts leading to registration of the case under S. 120-B,477-A IPC and Section 7 P.C. Act,1988 against various accused is on the basis of source information as well as written complaint from Praveen Kumar Rai, Director MHA Govt. of India vide OM No. 14035/2022 dated 22.07.2022 conveying the directions of Competent Authority for enquiry into the matter of irregularities in framing and implementation of the Excise Policy of GNCTD for thew year 2021-2022 by the CBI. This information was conveyed to the Hon'ble L.G. 20. On enquiry, it was found that the Excise Policy had been manipulated to facilitate the monopolization and cartelization of the wholesale and retail liquor trade in Delhi by the accused from South India, a new policy was formulated increasing the profit margin from 6% to 12% resulting in windfall profit margin and consequent giving of money in lieu thereof. 21. It is stated that the petitioner as Chief Minister of Delhi, is the Party Supremo and National Convenor of Aam Aadmi Party (hereinafter referred to as "AAP"). While he does not hold any Ministerial Portfolio in GNCT of Delhi, all the decisions of the Government as well as of the Party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2021, presented a Draft Note to Rahul Singh, Head of the Expert Committee, with the direction to put up a Cabinet Note in accordance with the Draft Note, along with the Expert Committee Report and summary of feedback received from public/stakeholders on the same lines. The objective of this Cabinet Note was to constitute a Group of Ministers (hereinafter referred to as "GoM") to examine the Report of the Expert Committee, with the intention to make out a case for incorporating suitable provisions in the upcoming Excise Policy. The Cabinet Note that was drafted, included legal opinion and also additions which were made by Rahul Singh on his own. This did not meet the pleasure of Manish Sisodia, but neither the said file was sent back to Excise Department nor was it traceable thereafter. 25. It is further submitted that conveniently a new File was initiated on 02.02.2021 for putting up a Cabinet Note along with the Expert Committee's Report and feedback received from the public/stakeholders. The Cabinet headed by the petitioner, constituted the GoM with the pre-conceived notion to bring about changes in the Retail and Wholesale models of the Excise Policy in total variance to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it has been stated that the first draft of GoM Report dated 15.03.2021 was retrieved from the computer of Manish Sisodia, in which the profit margin for wholesalers in New Excise Policy was 5% only. Subsequently, the same had been revised in the subsequent report to 12% thereby incorporating the provision for windfall gain to the Wholesalers. 31. The final GoM Report came on 22.03.2021, in which the enhanced profit margin was 12% for the Wholesalers was incorporated. The Cabinet approved this draft New Excise Policy on 15.04.2021 and the file was sent on 20.04.2021 to the Hon'ble Lieutenant Governor to express any difference of opinion under proviso to Article 239 AA(4) of the Constitution of India, who gave seven suggestions to be incorporated in the New Excise Policy on 20.05.2021, on which the Hon'ble Lieutenant Governor had expressed his reservation about authorisation of the Finance Minister for amendments in the Policy, since any amendment required the Cabinet approval. 32. On 21.05.2021, the file of Delhi Excise Department regarding formulation of a New Excise Policy was got approved through circulation on the directions of the petitioner on 21.05.2021. The File was aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission under Section 17-A of PC Act, 1988 which led to the respondent-CBI proceeding to investigate in the role of the petitioner. 38. It is submitted that after securing the permission under Section 17-A of PC Act, 1988, the respondent-CBI deemed it appropriate to interrogate the petitioner as an accused on 24.06.2024 after taking permission from the ld. Special Judge. 39. The petitioner was interrogated in Tihar Jail on 25.06.2024, during which he remained evasive and non-cooperative, failing to give satisfactory replies to the questions raised to him in regard to his role in the matter of demand of upfront money of Rs. 100 crores from co-accused persons of South Group, the acceptance of the delivery of the same to AAP through his close associate, Vijay Nair as well as utilisation of the ill-gotten money so received in the Assembly Election of Goa during the year 2021-22 to meet the election-related expenditures of AAP. 40. The petitioner further remained evasive in regard to his role as well as of the co-accused persons in respect of the criminal conspiracy hatched therein. The petitioner's Replies were contrary to the oral and documentary evidence gathered by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner to sensationalise the case are unfortunate. 45. Since the sanction was received under Section 17-A of PC Act, 1988 on 23.04.2024, the respondent-CBI started examining the role of the petitioner. In the interim, the respondent-CBI had conducted investigations, leading to the arrest of the co-accused-K. Kavitha on 11.04.2024 and the third Supplementary Chargesheet against K. Kavitha was filed on 06.06.2024. 46. The investigations against the petitioner were necessary to bring the investigation to its logical conclusion. Since the petitioner was in judicial custody, his presence could not have been secured without the permission of the Court. The due permission to interrogate the petitioner had been sought from the learned Special Judge as per the provisions of Section 41A of Cr.P.C., 1973 on 24.06.2024 because of the petitioner remained evasive during interrogation. Custodial interrogation was deemed appropriate for further elicitation which is an important right of the investigating agency to unearth the truth. By this time, the bail granted to the petitioner in the ED case, was stayed by this Court, as such dispelling any or all notions of mala fide against the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also taken but was dismissed by this Court vide Order dated 09.04.2024. 50. In the end, it is submitted that the Petition has no merit and is liable to be dismissed. Submissions: 51. Learned Senior Advocate on behalf of the petitioner has argued that the arrest in the present Case, is nothing but an Insurance arrest to ensure that the petitioner is prevented from coming out of the jail once he was granted bail in the PMLA Case. There was no material whatsoever for arrest and there was no intention of CBI ever to arrest the petitioner in the present Case, which is borne out from the fact that the FIR bearing No. RC0032022A0053 under Section 120-B read with Section 477A IPC and Section 7 of the PC Act, was registered by CBI, on 17.08.2022, despite which no steps had been taken in the last two years to secure the arrest of the petitioner. It is further contended that this is one of the unique cases, where the arrest under PMLA which is the predicate offence, has been made prior to arrest of the petitioner in CBI case. It is clearly reflective of there being no intent of CBI, to arrest the petitioner in the CBI matter. 52. Learned Senior Advocate has pointed out that there is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of interrogation / investigation; Section 41A of CrPC absolutely mandates otherwise. It provides that in case any interrogation is required to be made, a Notice be served under Section 41A Cr.P.C. to the concerned person; and so long as he joins the investigations, he shall not be arrested. Despite this mandate of Law, no prior Notice of Section 41A was given to the petitioner before his arrest. The petitioner was interrogated in jail on 24.06.2024 and based on this interrogation, the respondent-CBI vide Application dated 25.06.2024, sought the permission to formally arrest the petitioner as an accused. The petitioner was produced on production warrants in the Court on 26.04.2024, on which date he was formally arrested in accordance with the mandate of the law. The remand Order/Production Warrants issued against the petitioner, were otiose as the arrest had already been validated vide Order dated 25.06.2024. The very fact that an earlier Application dated 24.06.2024, was served upon the petitioner and he had been interrogated for three hours in the jail with the permission of the Court, further re-affirms that no custodial interrogation of the petitioner was required. He had all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he arrest. The petitioner is the Chief Minister of NCT of Delhi and there cannot be any flight risk of the petitioner. He has roots in the society and has no criminal antecedents. He is also not a habitual offender. There are no chances of his interfering with the documentary evidence and there is also not chance of his non-cooperation. 62. In the end, it is again argued that aside from non-satisfaction of the triple test prescribed for the arrest of a person, it cannot be ignored and overlooked that in the past two years, there was no need felt by the CBI to arrest the accused and there is nothing which can be spelled out by the CBI to show that the petitioner had not been co-operating in the investigations. Thus, the arrest is liable to be declared illegal and the bail be granted to the petitioner or in the alternative, interim bail may be granted to the petitioner. 63. Learned Special Public Prosecutor on behalf of the State, has repelled all the arguments raised on behalf of the petitioner, by submitting that Notice under Section 160 Cr.P.C. can be given to any person who appears to be acquainted with the facts and circumstances of the case. It does not limit itself to the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 2024, which was granted on 23.04.2024. Thereafter, the petitioner had been granted interim bail under the PMLA from 10.05.2024 till 01.06.2024 by the Supreme Court of India, on account of the Lok Sabha Elections. In respect and reverence to the Orders of the Apex Court, the CBI held back its hands and no investigations were undertaken during this period. In the interim, the CBI was continuing with his investigations in regard to the accusations made in the FIR. Once, the bail granted in the PMLA case was stayed by the Special Judge, there was no likelihood of release of the petitioner and therefore, the arrest was not to pre-empt the release of the petitioner but only because of the necessity considering the nature of the evidence collected during the investigations against him. 67. Learned Special Public Prosecutor for the State, in regard to the procedure for arrest under Section 41Cr.P.C. has explained that in accordance with the Rule 1347 of Delhi Prison Rules, 2018, the permission for interrogation of the petitioner, was sought vide Application dated 24.06.2024. Since the petitioner was in judicial custody in jail, there could not have been interrogation without the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce has not been able to change its image of being considered as a friend of public. It was further observed in Arnesh Kumar (supra) that the attitude to arrest first and then proceed with the rest, is despicable. It has worked as a handy tool for the Police Officers who lack sensitivity or act with oblique motives. 71. The Apex Court has emphasized in the case of Arnab Manoranjan Goswami (supra) that the 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. While so observing, it was further stated that on one side of the spectrum is the human liberty which is a precious constitutional value though undoubtedly, subject to regulation by validly enacted legislation. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to "prevent abuse of the process of any Court or otherwise to secure the ends of justice". While on the one end of the spectrum is the basic principle that the due enforcement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of offence. It has been explained by the prosecution that initially when the investigations were at the nascent stage, the petitioner was only thought of as a person who was in the know-how of the facts and thus, examined under Section 160 Cr.P.C. However, after thorough investigations, the layers of crime started opening and role of various accused persons became evident. After, about one and a half years of thorough investigations, the role of the petitioner as an accused started emerging and to interrogate him, Application for his sanction was moved in January, 2024 which was granted in April, 2024. It is only thereafter the I.O. could interrogate him by giving a Notice under Section 41 A Cr.P.C. 75. Section 41A of Cr.P.C., 1973 reads as under: - "Section 41A -- Notice of appearance before police officer.- (1) The police offer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing 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, to appear before him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets against various persons, had been filed. It further detailed that from the investigations, the statements of the witnesses and approvers under Section 161 and Section 164 of Cr.P.C., 1973 as well as the WhatsApp chats retrieved from the mobile phones of the accused persons, documents related to formulation of Excise Policy and records of hawala operators relating to transfer of ill-gotten money to Goa through hawala channel to meet the expenditures related to Goa Assembly Election during 2021-22 by AAP, it had been revealed that the petitioner was the key conspirator in the criminal conspiracy in formulation and implementation of Delhi Excise Policy 2021-22. According to the said Application, there was reasonable suspicion of involvement of the petitioner in the commission of offence for which his examination was sought by the respondent-CBI. 79. The I.O. could carry out the interrogation by giving Notice under Section 41A Cr. P.C. but he came to be faced with a hurdle of the petitioner being in custody in PMLA case and he could not be asked to join the investigations in the CBI case which was independent. The only option left was for the I.O. to go to the accused for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner wherein it does not specify the grounds of arrest in its Application. In Paragraph 16 of the Application dated 25.06.2024, for arrest of the accused in jail, it has claimed that the petitioner has failed to give satisfactory reply to the questions put to him and that he has not been given the custodial answers and therefore, in Paragraph 17 of the said Application, has sought his custodial interrogation. 84. The reliance has been placed on 'Arnesh Kumar vs. State of Bihar', (2014) 8 SCC 273; 'Chanda Kochhar vs. CBI', 2023 SCC OnLine Bom 72; 'Chandra Deepak Kochhar vs. CBI', Writ Petition No.378 of 2023; 'Lalita Kumari vs. Govt. of U.P.', (2014) 2 SCC 1; 'Joginder Kumar vs. State of U.P.', (1994) 4 SCC 260; 'Arnab Manoranjan Goswami vs. State of Maharashtra', (2021) 2 SCC 427; 'Satender Kumar Antil vs. Central Bureau of Investigation', (2022) 10 SCC 51; 'Santosh vs. State of Maharashtra', (2017) 9 SCC 714 and 'Pankaj Bansal vs. Union of India', 2023 SCC OnLine SC 1244, to argue that this ground has not been held to be a justiciable ground for seeking the custody/arrest of the person. 85. Much has been argued on behalf of the petitioner that neither being non-coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A, cannot be a ground to arrest, but the core issue is to consider what is the requirement of arrest under Section 41 Cr.P.C. 90. Before adverting to the contents of the Application dated 25.06.2024 and in order to appreciate the contention that the arrest was illegal, Section 41 (1) Cr.P.C. may be reproduced which reads as under: - "Section 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.06.2024 seeking permission to arrest the petitioner. The said Application though again did not mention the Section in which it was filed, but from its title as well as the contents, it is evident that it was an application filed not under Section 41(1) but under Section 41(2) of Cr.P.C., 1973 which reads as under: "Section 41: ...... (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." 94. The five circumstances as provided in Section 41 (1) (b) apply only when an accused can be arrested without a warrant. According to Section 41(2) of Cr.P.C., 1973, if the arrest is by way of a warrant or under the Order of Magistrate, the only conditions to be satisfied are that a person may be arrested for an offence in respect of which a complaint has been made or credible information has been received or reasonable suspicion exists. Therefore, it is explicit that the additional conditions specified in Sub-Clauses (a) to (e) of Section 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Policy, as well as, to establish the money trail of ill-gotten money generated and to establish the role of other suspect persons including public servants, as well as, to unearth the facts, which were in his exclusive knowledge. 97. This Application, therefore, fully explained the aspects on which he was evasive or was not disclosing the true facts. It also listed the basis of suspicion of involvement of petitioner in commission of the crime. It is not a case where the petitioner was being compelled to be a witness to himself or to make confession but to disclose such facts, which were within his special knowledge. To be able to pin exactly what facts are in his special knowledge, may not be possible for the Investigating Agency, for it is only after thorough investigation can they make the person reveal the facts, which are till then not known to any person. 98. This Application was duly considered by the learned Special Judge, in his Order dated 25.06.2024 and since the petitioner was in judicial custody in another case, his production warrant was issued for the next day i.e. 26.06.2024. 99. When the petitioner got produced, pursuant to the production warrants on 26.06.2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. He has, in particular, referred to the statements of Magunta Sreenivasulu Reddy (Member of Parliament) under Section 164 Cr.P.C. recorded on 25.01.2024 and statement of his son Raghav Magunta recorded on 20.01.2024 under Section 164 Cr.P.C. Apart from other material adverted to, reference was also made to the statement of C. Arvind. It was argued that the role of the present accused became clear and permission under Section 17 A of PC Act was given on 23.04.2024. Thereafter, accused was examined and interrogated at Tihar Jail (he is in custody in connected PMLA matter). They found his replies to be evasive and non-cooperative and he did not give any satisfactory reply to the questions raised regarding his role in demand of money of 100 Crores from co-accused persons from South Group, acceptance and delivery of the same through his associate Vijay Nair and utilization of ill-gotten money for the Assembly Election of Goa. His replies were found contrary to the oral and documentary evidence gathered during investigation and gave evasive replies regarding co-accused persons in respect of criminal conspiracy. For the said reasons, the accused was arrested so that his custodial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss against himself in contradiction to his valuable rights enshrined and protected under Article 20 (3) of Constitution of India, but it was his specific non-cooperative attitude, which was also borne out from the case diary, that hampered the collection of relevant evidence that prompted the arrest. 103. Significant it is to state at this point that the I.O. is the master of all the investigations and he should not be hampered of prohibited from conducting the investigations and the Courts must step in only when there appears to be an abuse of power or arbitrary exercise of procedures especially the power of arrest. 104. In the present case, while permitting the arrest, the only factors to be considered by the Court were whether there is a reasonable suspicion or credible information about the commission of the offence. These factors were clearly detailed in the Application for arrest dated 26.04.2024 and it is not the argument of either party that there were no suspicious circumstances against the petitioner in regard to the conspiracy to commit the offence. 105. In this context, reference be made to the decision of the Apex Court in Union of India vs. Padam Narayan Aggarwal A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosing the facts on many material aspects. The Investigating Officer also pointed out certain incriminatory material collected during the investigation, to show how the ill-gotten money had been used for Goa Assembly Elections for making payments towards the expenses of air-tickets and hotel booking during the visits of the accused to Goa, during the period from June 2021 to February, 2022. From the case diary, the Investigating Officer has also pointed out certain other incriminatory material showing chats of the accused with the certain persons involved in transfer of ill-gotten money to Goa, through Hawala Channels and submitted that for the custodial investigation may be required to unearth the larger conspiracy. 108. There was evidently, enough evidence than has been projected on behalf of the petitioner which justified permission to Arrest and to remand the petitioner to the Custody by the Orders of the Ld. Special Judge for which the procedure was duly followed. Arrest reflects Malice In Law: 109. Learned Senior Advocate on behalf of the petitioner has argued that the arrest in the present Case, is nothing but is an Insurance Arrest to ensure that the petitioner is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T of Delhi, the police treaded with trepidation and caution and proceeded to collect the evidence from other persons suspected to be the accused. Consequently, extensive investigations were carried out across India to ascertain the entire web of conspiracy involving numerous persons. The Investigating Agency has further explained that it is only after sufficient material was collected against the Petitioner over a period of one and a half years, that they sought the sanction for prosecution of the petitioner, which was granted on 23.04.2024. The reasons for not proceeding immediately against the petitioner, after registration of the FIR is thus, well explained by the CBI and does not reek of malice. 113. It would also not be out of place to observe that Ld. S.G. may have stated that Charge Sheet would soon be filed, cannot be interpreted to state that the entire investigations stood completed; to interpret that the investigations stood completed, may not be correct. The petitioner was still being investigated; the investigations were at their last leg. 114. It is not on account of malice or a well-planned strategy, as has been argued on behalf of the petitioner that the accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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