9911796707
TMI Blog2024 (9) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... llant 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 granted the Appellant interim bail on 10.05.2024, until 01.06.2024. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 of non-compliance with Section 41A of the CrPC was totally unsubstantiated. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 to taking the Appellant back to square one, leading to a travesty of justice and unwarranted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 holds or his political stature. Mr. Raju canvassed that the Appellant deserves to be treated like any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant'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 offence. Clause (2) of Section 41A thereafter, demands that an individual to whom such a notice has been issued, complies with the same. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 does not envisage or mandate the issuance of a notice to an individual already in judicial custody. As such a person is already under the court's autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, and the police officer is satisfied that the individual should be arrested. In this context, we have already noted that the CBI, in their application dated 25.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. ......" 32. Section 41(1)(b)(ii) of the CrPC clearly stipulates that an arrest unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 necessarily means that where a Magistrate has issued an order, the police officer stands absolved form his statutory obligation of forming an opinion. Consequently, it becomes apparent that the variables and conditions ensconced in Section 41(1)(b)(ii) of the CrPC would cease to apply in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. 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. 40. In our considered view, although the procedure for the Appellant's arrest meets the requisite criteria for legality and compliance, continued incarceration for an extended period pending trial would infringe upon established legal principles and the Appellant's right to liberty, traceable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 adjudicated promptly on their merits, rather than oscillating between courts on mere procedural technicalities. 46. This issue is however, more or less academic in the instant case as the High Court did not relegate the Appellant to the Trial Court at the preliminary stage. Since notice was issued and the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and manipulation in the framing and implementation of the excise policy of the Government of National Capital Territory of Delhi (GNCTD) for the year 2021 - 22. The precise allegation is that the accused persons had deliberately tweaked and manipulated the excise policy of 202122 which resulted in enhanced profit of the liquor manufacturers, wholesalers and retailers in lieu of illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority 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 stayed the bail order on 21.06.2024 on an oral mentioning. A detailed order staying the bail of the appellant in the ED case was pronounced by the High Court only on 25.06.2024. 9. CBI sought for custody of the appellant so as to interrogate him. Application filed by the CBI in this regard under Section 41A Cr.P.C. was allowed by the learned Special Judge on 24.06.2024. 10. It is stated that CBI interrog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminating 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 to arrest" refers to the satisfaction of formal parameters to arrest and take a person into custody, or it relates to other personal grounds and reasons regarding necessity to arrest a person in the facts and circumstances of the said case? (c) If questions (a) and (b) are answered in the affirmative, what are the parameters and facts that are to be taken into consideration by the court while examining the question of "need and necessity to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 not feel the necessity to arrest the appellant though it had interrogated him about a year back on 16.04.2023. It appears that only after the learned Special Judge granted regular bail to the appellant in the ED case on 20.06.2024 (which was stayed by the High Court on 21.06.2024 on oral mentioning) that CBI became active and sought for custody of the appellant which was granted by the learned Special Judge on 26.06.2024. Even on the date of his arrest by the CBI on 26.06.2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 apprehension of tampering with the evidence or influencing witnesses has already been answered by this Court in the case of Manish Sisodia in the following manner: 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma 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 freedom and cast scars forever. This Court, while emphasizing the need to sensitize the police against highhanded arrest, deprecated the attitude to arrest first and then to proceed with the rest. While emphasizing that police officers should not arrest the accused unnecessarily and that the Magistrate should not authorize detention casually and mechanically, this Court observed as follows: 5. Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als 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, mandates that investigation must be fair, transparent and judicious. This Court has time and again emphasized that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India. Investigation must not only be fair but must be seem to be so. Every effort must be made to remove any perception that investigation was not carried out fairly and that the arrest was made in a highhanded and biased manner. 33. In a functional democracy governed by the rule of law, percep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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, this Court in Kanumuri Raghurama Krishnam Raju Vs. State of A.P. ( 2021 ) 13 SCC 822, after observing that jurisdiction of the trial court as well as of the High Court under Section 439 Cr.P.C. is concurrent, held that merely because the High Court was approached by the appellant without approaching the trial court would not mean that the High Court could not have considered the bail application of the appellant. In the facts of that case, this Court opined that the High Court ought to have considered the bail application of the appellant on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post. 37.1. Manish Sisodia is a coaccused in the same CBI case and the ED case. His second bail application was rejected by the trial court on 30.04.2024 after taking about three months' time to decide the same. When Sisodia moved the High Court for bail, the same also came to be rejected on 21.05.2024. It was thereafter that Manish Sisodia approached this Court in the second round. In the hearing which took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jail is the exception. As such, the courts at all levels must ensure that the process leading to and including the trial does not end up becoming the punishment itself. 40. This Court has emphasized and reemphasized time and again that personal liberty is sacrosanct. It is of utmost importance that trial courts and the High Courts remain adequately alert to the need to protect personal liberty which is a cherished right under our Constitution. 41. That being the position and having regard to the discussions made above, I am of the unhesitant view that the belated arrest of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
