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TMI Blog2024 (2) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... sts an obligation on such person to comply with the provision and further restricts the power to arrest when such person complies or continues to comply with the terms of notice, unless the police officer is of the opinion that the arrest is necessary, and further mandates to record to reasons for the arrest. In Satyendra Kumar Antil [ 2022 (8) TMI 152 - SUPREME COURT] the Apex Court has observed that Sections 41 and 41A are facets of Article 21 of the Constitution of India, and the Investigating Agencies and their officers are duty bound to comply with the mandate of the said provisions as well as the directions issued in Arnesh Kumar vs. State of Bihar [ 2014 (7) TMI 1143 - SUPREME COURT] . 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 - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrest and interrogate the petitioners for a period of over three years. The Investigating agency has not been able to demonstrate existence of circumstances or supportive material on the basis of which the decision to arrest was taken. Absence of such circumstances, information or material which is the sine qua non for the decision of arrest reduces the provision a dead letter and renders the arrest illegal. In the instant case, the petitioner Chanda Kochhar was arrested before sunset. Hence, sub section (4) of Section 46 is not attracted. The decisions relied upon are therefore distinguishable. The case diary reveals that the arrest was in presence of a lady police officer. There is nothing on record to prima facie indicate that the petitioner was physically touched by a male police officer. No complaint in this regard was made to the Judge before whom the petitioner was produced for remand - there was no contravention of Section 46 or 60A Cr.P.C. The arrest of the petitioners is held to be illegal for breach of mandatory provision under Section 41A Cr.P.C. Hence the petition is allowed. - ANUJA PRABHUDESSAI AND N. R. BORKAR, JJ. For the Appellant : Mr. Amit Desai, Senior Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Investigating Officer for interrogation pursuant to notice dated 15.12.2022 issued under Section 41A of the Cr.P.C. The petitioners were produced before the learned Special Judge for remand. By order dated 24.12.2022, and subsequent remand orders, the learned CBI Special Judge remanded the petitioners initially to police custody and later to judicial custody. Hence, these petitions for the reliefs, as stated above. 5. By order dated 09.01.2023 the co-ordinate bench of this Court released the petitioner on interim bail mainly on the ground that the arrest was in contravention of the mandatory provisions of Section 41A Cr.P.C. The said order has been challenged by the CBI before the Apex Court in Special Leave to Appeal (Cri.) Nos. 13697-13698/2023. By order dated 03.01.2024, the Hon ble Supreme Court directed this Court to hear the main writ petition which was fixed for hearing before this Court on 05.01.2024, with further directions to the parties not to ask for adjournment on the said date. In view of the said directions, the petitions were taken up for final hearing. 6. On 05.01.2024, Mr. Amit Desai, learned Senior Counsel for the petitioner made a statement that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for over three years. This aspect has been considered by this Court in Writ Petition No.300 of 2023 filed by Venugopal Dhoot. Learned Counsel further submits that even after the arrest of the petitioners, the co-accused Venugopal Dhoot was served with notice under Section 41-A, making it appear that his presence was not required for confrontation. 10. Learned Senior Counsel further submits that reason to believe cannot be the mere ipse dixit of the investigating officer. There must be rational and reasonable justification as to the need to effect arrest. In the present case, the arrest is made in routine manner, without reasonable satisfaction and without satisfying the requirements of Section 41 of Cr. P.C. 11. Mr. Desai submits that the petitioners were arrested a few weeks before the marriage of their son, which fact makes it evident that the arrest was malafide. The arrest was not based on any material evidence and was in contravention of Section 41A(3) Cr.P.C as well as the provisions under Section 46 of the Cr. P.C. He submits that the remanding Court also failed to consider this aspect and thereby failed to comply with the duties and obligation as required under the dictum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as my be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice, unless for the reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a Competent Court in this behalf, arrest him for the offence mentioned in the notice. 16. Section 41A was inserted to avoid routine arrests. This section mandates issuance of notice where the arrest of a person is not required under Sub Section (1) of Section 41. This provision casts an obligation on such pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires 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? Wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused. 9. ...The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. 10. .................. 11. Our endeavour in this judgment is to ensure that police 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpected to be reflected in the orders. 29. Despite the dictum of this Court in Arnesh Kumar(supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code. This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of reason to believe and satisfaction qua an arrest are mandated and accordingly are to be recorded by the police officer. 30 ... 31 .... 32. We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a rational connection with a formation of the belief that there was direct live link between the material before the Officer and the formation of the belief. Upon examining the grounds of arrest, as recorded in the arrest memo and considering the dictum in Selvi v.State of Karnataka (2010) 7SCC 263, it was observed thus: 8.10. 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 the person can be arrested, that is contrary to the Mandate of Section 41(1)(b)(ii)(a) to (e). Not disclosing true and correct facts cannot be the reason, inasmuch as, the right against self-incrimination as provided for in Article 20(3) of the Constitution x x x 8.21. The facts reveal that the petitioners after registration of PE in December 2017 had reported to the CBI, pursuant to the summons issued; tht they not only appeared but also submitted documents, details of which are mentioned in the seizure memos, as set-out in the facts stated aforesaid. Admittedly, during the period, 2019 till June 2022, for around four years, neither any summons were issued to the petitioners nor any communication was established by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 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. ... 21. As regards the legality of the remand order, the co-ordinate bench of this Court has observed that the concerned Judge authorizing detention ought to have recorded its own satisfaction, may be in brief, but the satisfaction must be reflected from his order. It was observed that the order of remand does not confirm to the said requirement/direction given by the Apex Court in the case of Arnesh Kumar, this Court held that the petitioners are entitled for bail, pending hearing and final disposal of the petitions. 22. The aforesaid observations recorded in order dated 9.1.2023, while considering the question whether the arrest of the petitioner was illegal , cannot be considered as prima facie observations or tentative view. It needs to be borne in mind that as on the date of the order, the challenge to the FIR was also pending before the Court. The said prayer has been deleted subsequent to the order dated 09.01.2023. In such circumstances, the findings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2016, and (3) to ascertain the names and roles of the other conspirators /officials of ICICI Bank in sanctioning disbursement of the term loan to Videocon Group Companies. 27. There can be no dispute that it is within the domain of the Investigating Agency to interrogate the accused and to arrive at a subjective satisfaction on the issue of arrest. We are conscious and mindful that the satisfaction of the investigating agency is subjective in nature and the Court cannot go into the reasonableness of the reasons of arrest and or substitute its objective opinion for the subjective satisfaction. Nevertheless, the subjective satisfaction is not wholly immune from judicial reviewability. The Court can consider whether the reasons for deprivation of liberty are rational, reasonable or fanciful. In Barium Chemicals Ltd vs. Company law Board the Apex Court with reference to Section 237 of the Companies Act has observed that the Court cannot go into the question of aptness or sufficiency of the grounds upon which the subjective satisfaction of an authority is based. However, the entire process is not subjective. While the existence of relevant material/information is objective, wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conspiracy, similarly the gravity of the offence and alleged quid pro quo were to the knowledge of the Investigating Agency as on the date of the registration of the FIR. The FIR states that the loan sanctioning Committees of ICICI Bank had sanctioned loan to Videocon Group of Companies. Some of the senior officials of ICICI Bank were also named in the first information report, and it was stated that the role of these senior officers of the sanctioning committee was also required to be investigated. Thus the involvement of the other bank officials in the conspiracy was not discovered in the course of the investigation but were to the knowledge of the Investigating agency, as on the date of registration of the FIR, despite which the Investigating Agency did not feel the need to arrest and interrogate the petitioners for a period of over three years. The arrest on 23.12.2022 was not on the basis of any additional material discovered in the course of the investigation, but was based on the same material which was within the knowledge of the Investigating Officer at the time of issuance of notice under Section 41A. Such routine arrest without application of mind and due regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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