NON-CONFESSION OF ACCUSED DOESN’T AMOUNT TO NONCOOPERATION, ACCUSED MUST BE RELEASED FORTHWITH IF ARREST DOESN’T SATISFY SECTION 41 CRPC: BOMBAY HC

It deserves mentioning at the very start that the Bombay High Court while exercising its criminal appellate jurisdiction in a most learned, laudable, landmark, logical and latest judgment titled Chanda Deepak Kochhar vs Central Bureau of Investigation in Criminal Writ Petition (Stamp) No. 22494 of 2022 With Interim Application (Stamp) No. 54 of 2023 With Criminal Writ Petition (Stamp) No. 22495 of 2022 With Interim Application (Stamp) No. 57 of 2023 [in short 901 & 902-WPST-22494 & 22495-2022-J. doc] that was reserved on January 6, 2023 and then finally pronounced on January 9, 2023 has laid down in no uncertain terms in its detailed order granting interim relief of bail to Ex-ICICI Bank CEO Chanda Kochhar and her husband Deepak Kochhar in the ICICI BankVideocon loan fraud case propounding that merely saying that the accused has not co-operated and disclosed true and full facts of the case, cannot be the sole reason for arrest. A Division Bench of Hon’ble Ms Justice Revati Mohite Dere and Hon’ble Mr Justice Prithviraj Chavan further sought accountability from judicial officers remanding accused and ordering their detention after arrest. The Division Bench minced just no words to hold firmly that, “It is incumbent on the judicial officer authorizing detention under Section 167 CrPC, to be first satisfied that the arrest made is legal and in accordance with law and that all the constitutional rights of the person arrested, are satisfied. The same is not an empty formality. If the arrest effected does not satisfy the requirements of Section 41 of CrPC, the concerned court is duty bound not to authorize further detention of the accused and release the accused forthwith.” Very rightly so! At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Revati Mohite Dere for a Division Bench of the Bombay High Court comprising of herself and Hon’ble Mr Justice Prithviraj K Chavan sets the ball in motion by first and foremost putting forth in para 1 that, “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 the remand orders dated 24.12.2022 and 26.12.2022 passed by the learned Special CBI Judge, Mumbai. Quite ostensibly, the Division Bench then states in para 2 that, “By way of interim relief, the petitioners seek their release from custody pending the hearing and final disposal of the petitions.” As we see, the Bench then specifies in para 3 that, “The petitions, as agreed between the parties, are heard only for the limited purpose for considering 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.” To put things in perspective, the Division Bench then envisages in para 4 that, “Mr Amit Desai, learned senior counsel appearing for the petitioner-Chanda Kochhar submits; (i) that the respondent No. 1-CBI has, with blatant disregard to the rule of law, illegally and arbitrarily arrested the petitioner in clear contravention of the constitutional mandate and the provisions of Cr.P.C, pertaining to arrest; (ii) that there was no occasion whatsoever to arrest the petitioner, inasmuch as, the petitioner had cooperated with the CBI throughout, right from the time the Preliminary Enquiry (‘PE’) was registered by the CBI till she was arrested. Learned senior counsel pointed to the number of times, the petitioner appeared before the CBI, and the documents submitted by her to the CBI; (iii) that the petitioner had appeared before the Directorate of Enforcement (‘ED’), after the ED registered offences under Sections 3 and 4 of the Prevention of Money Laundering Act (‘PMLA Act’) on 31.01.2019 against her and others and that the petitioner had co-operated with the investigation conducted by the ED; (iv) that even in the adjudicating proceeding before the PMLA Authority, the petitioner had appeared and participated. He submitted that the Adjudicating Authority had after hearing the parties lifted the provisional attachment order passed by ED, vide order dated 06.11.2020; (v) that throughout, i.e. right from the registration of the PE by respondent No. 1, registration of FIR by ED, till date, it is the petitioner’s case, that she had no knowledge regarding her husband Deepak Kochhar’s transactions; (vi) that the respondent No.1-CBI by arresting the petitioner, had contravened the constitutional mandate and statutory rights granted to the petitioner. Learned senior counsel submits that there has been a clear breach of the mandate 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. Learned senior counsel, in support of his submissions, relied on the several judgments, in particular, the following judgments: (1) Satender Kumar Antil v. CBI (Supra) (2) Santosh v. State of Maharashtra (2017) 9 SCC 714 (3) Lalita Kumari v. Govt. of Uttar Pradesh (2014) 2 SCC 1 (4) D. K. Basu v. State of West Bengal (1997) 1 SCC 41 (5) Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260 (6) Mohd. Zubair v. State (NCT of Delhi) (2022) SCC OnLine SC 897 (7) Arnesh Kumar v. State of Bihar (Supra) (8) Arnab Manoranjan Goswami v. State of Maharashtra (2021) 2 SCC 427.” To be sure, the Division Bench then observes in para 5 that, “Mr. Choudhary, learned senior counsel appearing for the petitioner-Deepak Kochhar adopted the submissions so canvassed by Mr Desai. He submitted that even in the petitioner’s case, there is non-compliance of the mandate of Sections 41 and 41-A of Cr.P.C. He too submitted that there was absolutely no justification for the respondent No. 1-CBI to arrest the petitioner, as he too had cooperated with the investigation and had attended the CBI Office, whenever summoned, and that all documents as sought, were submitted by him. Learned senior counsel also relied on the judgments cited by Mr Desai.” Needless to say, the Division Bench enunciates in para 8.8 that, “From the aforesaid 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.” Be it noted, the Division Bench minces no words to hold in para 8.14 that, “Does the aforesaid reason/ground of arrest, satisfy the mandate of Sections 41 and 41-A of Cr.P.C and the directions given and the observations made by the Apex Court in the judgments reproduced hereinabove? We are afraid, it does not. Arrest may be authorised only if the concerned officer has ‘reason to believe’ and there is ‘satisfaction qua an arrest’ that the person has committed an offence. The term/expression, ‘reason to believe’ finds place in a number of penal statutes. It postulates belief and the existence of reasons for that belief. Belief must be in good faith and not casual or as an ipse dixit or a pretence or on mere suspicion. It is always open for a court to examine 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.” Most clearly, the Division Bench notes in para 8.18 that, “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/setout 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.” It would be instructive to note that the Division Bench postulates in para 8.19 that, “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’ cannot be a reason, inasmuch as, the right against self incrimination is provided for in Article 20(3) of the Constitution. It is a well settled position in view of the Constitution Bench decision in Selvi vs. State of Karnataka (2010) 7 SCC 263. Article 20(3) is an essential safeguard in criminal cases and is meant to be a vital safeguard against torture and other coercive methods used by investigating agencies. Hence, merely because an accused does not confess, it cannot be said that the accused have not co-operated with the investigation. The Apex Court in Santosh v. State of Maharashtra (Supra), has clearly held that in view of the Constitutional Bench judgment in Selvi’s case (Supra), Article 20(3) of the Constitution enjoys an “exalted status” and serves as an essential safeguard against torture and coercive measures used by investigating officers.” Most forthrightly, the Division Bench then enunciates in para 8.21 that, “The facts reveal that the petitioners after registration of PE in December 2017 had reported to the CBI, pursuant to the summons issued; that 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 the respondent No.1– CBI with the petitioners. On 08.07.2022, the petitioners reported to the CBI Office, New Delhi, pursuant to the notice issued under Section 41-A. Thereafter, again Section 41-A notice was issued by the CBI in December 2022, pursuant to which, the petitioners appeared before the CBI on 23.12.2022, when they came to be arrested. What was the reason to arrest the petitioners after four years is not spelt out in the arrest memos, as mandated by Section 41(1)(b)(ii) Cr.P.C. The reason given in the arrest memos to arrest the petitioners, having regard to the facts as stated aforesaid, appears to us, to be casual, mechanical and perfunctory, clearly without application of mind. The ground for arrest of the petitioners mentioned in the arrest memos is in clear breach of the mandatory provisions of Sections 41 and 41-A and 60-A of Cr.P.C.” Most remarkably, the Division Bench then expounds in para 8.22 that, “As a Constitutional 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. 

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