Bombay High Court
Deepak Kochhar vs Central Bureau Of Investigation And Anr on 6 February, 2024
Bench: Anuja Prabhudessai, N. R. Borkar
2024:BHC-AS:7554-DB
wp 378-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 378 OF 2023
WITH
INTERIM APPLICATION NO. 804 OF 2023
Chanda Kochhar
Age 61 years, having address at
45, CCI Chambers,
Churchgate, Mumbai 400 020 ..Petitioner
v/s.
1. Central Bureau of Investigation
BS & FC, 3rd & 4th Floor,
Plot No. C-35A, G Block,
Bandra Kurla Complex (BKC),
Near MTNL Exchange,
Bandra (East), Mumbai 400098
2. State of Maharashtra ..Respondents
WRIT PETITION NO. 377 OF 2023
WITH
INTERIM APPLICATION NO. 311 OF 2023
Deepak Kochhar ..Petitioner
v/s.
1. Central Bureau of Investigation
BS & FC, 3rd & 4th Floor,
Plot No. C-35A, G Block,
Bandra Kurla Complex (BKC),
Near MTNL Exchange,
Bandra (East), Mumbai 400098
2. State of Maharashtraau of Investigation
& Another. ..Respondents
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Mr. Amit Desai, Senior Advocate a/w. Mr, Gopalakrishna Shenoy,
Mr.Rohan Dakshini, Ms.Pooja Kothari , Ms. Deepa Shetty, Mr.
Pranav Narsaria and Mr. Tejas Popat I/b. Rashmikant & Partners for
the Petitioners in both the petitions.
Mr. Kuldeep Patil a/w. Limosil Ala for the Respondent No.1.
Ms. Rutuja Ambekar, APP for the State.
CORAM : ANUJA PRABHUDESSAI, &
N. R. BORKAR, JJ.
DATED : 6th FEBRUARY, 2024.
P.C.
1. By this Petition under Article 226 of the Constitution of India,
the petitioners seek to:
(i) quash the FIR No. RCBDI/2019/E/0001 dated 22.01.2019
registered under Section 120 B and Section 420 of the Indian Penal
Code and Section 7 and 13(2) r/w. 13(1)(d) of the prevention of
Corruption Act, 1988.
(ii) quash arrest of the petitioners being in violation of settled tenets
of law under Section 46 and 41A (3) of Cr.P.C. and
(iii) to quash the remand order dated 24.12.2022 and subsequent
orders passed by the learned Special Judge, CBI.
2. The brief facts necessary to decide this petition are as under.
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. On 8.12.2017, CBI registered preliminary inquiry bearing No.
PE.BDI/2017/E0001 in view of the information that during the
period from 2009 to 2012, the officials of ICICI Bank had
sanctioned credit facilities/ high value loan to the Videocon Group
of Companies promoted by Venugopal Dhoot, in violation of the
Banking Regulation Act under RBI guidelines and the credit policy
of the Bank. The petitioner Chanda Kochhar was one of the
members of the sanctioning committee. It is alleged that as a part
of quid pro quo, Mr. Dhoot made investment of Rs.64 Crores in
NuPower Renewables Pvt. Ltd. (NRPL) through M/s. Supreme
Energy Private Limited (SEPL), and also to Pinnacle Energy Trust
managed by the petitioner Deepak Kochhar, through circuitous
route. It is also alleged that the flat at CCI Chambers owned by
theVideocon Group was sold to the family trust of Deepak Kochhar
for Rs.11 lakhs, though the value of the flat was Rs.5.25 Crores.
3. The preliminary inquiry revealed that the petitioner Chanda
Kochhar had abused her official position in sanctioning loan to M/s.
VIEL and got illegal gratification through her husband Deepak
Kochhar. The finding of the preliminary inquiry led to registration
of the FIR against the petitioners for the aforesaid offences.
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4. The petitioners were issued notice dated 27.06.2022 under
Section 41A of Cr.P.C., pursuant to which they appeared before the
Investigating Officer on 8.7.2022 and were duly interrogated. The
petitioners were placed under arrest on 23.12.2022, when they had
appeared before 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
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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 petitioners do not wish to
press the prayer clause (a) which relates to quashing of the FIR. The
challenge is restricted to the legality of the arrest as well as the
remand orders. The challenge is mainly on the ground of violation
of mandatory provisions of Section 41A, 46 & 50 of Cr.P.C.
7. Mr. Amit Desai, learned Sr. Counsel representing the
Petitioner submits that the arrest of the petitioner is in violation of
the mandatory provisions under Section 41A of Cr.P.C. He submits
that the petitioners had co-operated with the investigation right from
the time of the preliminary inquiry. The petitioners had complied
with the terms of the notice under Section 41A of the Cr.P.C. and
furnished the requisite information. The petitioner Chanda Kochhar
had sought to produce detail notes prepared by her, however, the
same were not accepted and she was not allowed to make it part of
the statement.
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8. Mr. Desai, learned Senior Counsel submits that both the
petitioners had also co-operated with the other investigating agency
i.e. Enforcement |Directorate ( ED) investigating offences under
PMLA. They were interrogated and their statements were recorded
on several dates. Hence, the contention that the petitioners have not
been co-operating is baseless. Even otherwise, the petitioners have
right to remain silent and their silence cannot be construed as non-
cooperation.
9. Learned counsel for the petitioner submits that the
adjudicating authority vide detail order dated 06.11.2020 had
accepted the explanation given by the petitioner and held that the
properties alleged to be illegal gratification were not proceeds of
crime and lifted the provisional attachment order passed by the E.
D. This Court (Coram : Prakash Naik J.) while considering the bail
application of Deepak Kochhar has set out in detail the explanation
given by the petitioner in the course of the investigation and
granted bail to Deepak Kochhar. The challenge to the said order
has been dismissed by the Apex Court. The Investigating Agency
failed to consider this material aspect while placing the petitioner
under arrest. As regards confrontation of the petitioners and the co-
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accused Venugopal Dhoot, to investigate the allegation of quid pro
quo, learned Senior Counsel submits that these allegations were
within the knowledge of the investigating agency, despite which the
petitioners and the co-accused were not interrogated 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)
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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 of the Apex Court in Arnesh Kumar v.
State of Bihar (2014) 8 SCC 273. Reliance has been placed on
several decisions, including the decision in Satendar Kumar Antil
v. CBI (2022) 10 SCC 51; Arnesh Kumar vs. State of Bihar
(supra); Santosh v. State of Maharashtra (2017) 9 SCC 714;
Joginder Kumar vs. State of U.P. (1994) 4 SCC 260; Arnab
Goswami vs. State of Maharashtra 9(2021) 2 SCC 427; Daulat
Samirmal Mehta v. Union of India 2021 SCC Online Bom. 200.
12. Per contra, Mr. Kuldeep Patil, learned Counsel for the
respondent CBI submits that there is no violation of the provisions
under Section 41A (3). He contends that the case diary records the
reasons for the arrest. He submits that several complex issues are
involved in the matter and that the co-accused V.N.Dhoot had not
given satisfactory answers. Hence they were required to be
confronted with each other. He submits that the Court cannot go
into the sufficiency of the material and cannot substitute its
objective opinion for the subjective satisfaction. He further submits
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that the first remand report submitted before the Special Judge
incorporated the reasons. The Special Judge had also perused the
case dairy and only upon being satisfied with the reasons recorded
in the case diary, the Special Judge had passed the remand order.
13. Mr. Kuldip Patil, learned Counsel for CBI contends that the
arrest of the petitioner Chanda Kochhar was effected in presence of
a woman constable Sarita Kumari, which fact is also reflected in the
personal search memo as well as the case dairy. The arrest was
effected before the sunset, and hence the decisions in Kavita and
Alexandar (supra) are not applicable. He further submits that the
grounds of arrest were informed to the petitioners and even
otherwise the petitioners were well aware of the charges leveled
against them. He submits that the respondent CBI has followed the
legal mandate, as well as the procedural safeguards, hence the arrest
cannot be considered to be illegal.
14. We have perused the records and considered the submissions
advanced by the learned Counsel for the respective parties.
15. The legality of arrest is challenged essentially for non-
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compliance of the mandate of Section 41A Cr.P.C. which reads
thus:
" 41A- Notice of appearance before police officer:
(1) The Police Officer 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 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
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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 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.
17. In Satyendra Kumar Antil (supra) 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) 8 SCC 273. The relevant paras of Satyendra
Kumar Antil read thus:
"24. This provision mandates the police officer to
record his reasons in writing while making the arrest.
Thus, a police officer is duty-bound to record the
reasons for arrest in writing, Similarly, the police
officer shall record reasons when he/she chooses not to
arrest. There is no requirement of the aforesaid
procedure when the offence alleged is more than seven
years, among other reasons.
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25. The consequence of non-compliance with Section
41 shall certainly enure to the benefit of the person
suspected of the offence. Resultantly, while considering
the application for enlargement on bail, courts will
have to satisfy themselves on the due compliance of this
provision. Any non-compliance would entitle the
accused to a grant of bail.
26. Section 41A deals with the procedure for
appearance before the police officer who is required to
issue a notice to 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, and arrest is not
required under Section 41(1). Section 41B deals with
the procedure of arrest along with mandatory duty on
the part of the officer.
27. On the scope and objective of Section 41 and
41A, it is obvious that they are facets of Article 21 of
the Constitution. We need not elaborate any further, in
light of the judgment of this Court in Arnesh Kumar v.
State of Bihar, (2014) 8 SCC 273:
"7.1. From a plain reading of the aforesaid provision,
it is evident that a person accused of an offence
punishable with imprisonment for a term which may be
less than seven years or which may extend to seven
years with or without fine, cannot be arrested by the
police officer only on his satisfaction that such person
had committed the offence punishable as aforesaid. A
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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? What purpose it will serve? What object it
will achieve? It is only after these questions are
addressed and one or the other conditions as
enumerated above is satisfied, the power of arrest
needs to be exercised. In fine, before arrest first the
police officers should have reason to believe on the
basis of information and material that the accused has
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committed the offence. Apart from this, the police
officer has to be satisfied further that the arrest is
necessary for one or the more purposes envisaged by
sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.
8. An accused arrested without warrant by the police
has the constitutional right under Article 22(2) of the
Constitution of India and Section 57 CrPC to be
produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours
excluding the time necessary for the journey:
8.1. ...........................
8.2. Before a Magistrate authorises detention under
Section 167 CrPC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all
the constitutional rights of the person arrested are
satisfied. If the arrest effected by the police officer does
not satisfy the requirements of Section 41 of the Code,
Magistrate is duty-bound not to authorise his further
detention and release the accused. In other words,
when an accused is produced before the Magistrate, the
police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions
for arrest and the Magistrate in turn is to be satisfied
that the condition precedent for arrest under Section 41
CrPC has been satisfied and it is only thereafter that he
will authorise the detention of an accused.
8.3. The Magistrate before authorising detention will
record his own satisfaction, may be in brief but the said
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satisfaction must reflect from his order. It shall never be
based upon the ipse dixit of the police officer, for
example, in case the police officer considers the arrest
necessary to prevent such person from committing any
further offence or for proper investigation of the case
or for preventing an accused from tampering with
evidence or making inducement, etc. the police officer
shall furnish to the Magistrate the facts, the reasons
and materials on the basis of which the police officer
had reached its conclusion. Those shall be perused by
the Magistrate while 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. .....................
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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
officers not to automatically arrest when a case under
Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41
CrPC;
11.2. All police officers be provided with a check list
containing specified sub-clauses under Section 41(1)(b)
(ii);
11.3. The police officer shall forward the check list duly
filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the
accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the
Superintendent of Police of the district for the reasons
to be recorded in writing;
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11.6. Notice of appearance in terms of Section 41-A
CrPC be served on the accused within two weeks from
the date of institution of the case, which may be
extended by the Superintendent of Police of the district
for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers
concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to
be instituted before the High Court having territorial
jurisdiction.
11.8. Authorising detention without recording reasons
as aforesaid by the Judicial Magistrate concerned shall
be liable for departmental action by the appropriate
High Court.
12. We hasten to add that the directions aforesaid shall
not only apply to the cases under Section 498-A IPC or
Section 4 of the Dowry Prohibition Act, the case in
hand, but also such cases where offence is 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."
28. We only reiterate that the directions aforesaid ought
to be complied with in letter and spirit by the
investigating and prosecuting agencies, while the view
expressed by us on the non-compliance of Section 41
and the consequences that flow from it has to be kept in
mind by the Court, which is expected to be reflected in
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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
interpretation of the specific provision under Section 60A
of the Code which warrants the officer concerned to
make the arrest strictly in accordance with the Code.
.....................
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100. In conclusion, we would like to issue certain
directions. These directions are meant for the
investigating agencies and also for the courts.
Accordingly, we deem it appropriate to issue the
following directions, which maybe subject to State
amendments.:
100.1......................
100.2 The investigating agencies and their officers are
duty-bound to comply with the mandate of Section 41
and 41A of the Code and the directions issued by this
Court in Arnesh Kumar (supra). Any dereliction on
their part has to be brought to the notice of the higher
authorities by the court followed by appropriate action.
100.3 The courts will have to satisfy themselves on the
compliance of Section 41 and 41A of the Code. Any
non-compliance would entitle the accused for grant of
bail." (emphasis supplied)
18. 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. We are conscious of the fact that the
interim order does not substantially decide the rights, liability or lis
between the parties and that the interim order is always subject to
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the final order, which will adjudicate the final rights and liabilities
of the parties. Hence, there can be no gainsaying that the prima
facie observation or tentative view expressed at interim stage is not
binding at the final adjudication.
19. Nevertheless, a perusal of order dated 09.01.2023 reveals that
while considering the plea for interim bail pending final disposal of
the petition, this Court referred to the relevant provisions under
Section 41, 41A, 60 and 60A and relying upon the principles
enunciated by the Apex Court in Satyendra Kumar Antil, Arnab
Goswami, Santosh, Joginder Kumr, Mohd Zuben and considered
whether the petitioners arrest being contrary to the mandate of law
i.e. whether the arrests are in violation of Section 41, 41A and 60A
of Cr.P.C., the petitioners are entitled to be released on bail.
20. In this regard it was observed that it is always open for a
Court to examine whether the reason for formation of the belief
have 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.
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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"
xxx
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 the respondent
No.1-CBI with the petitioners. On 08.07.2022, the
petitioners reported to the CBI officer, 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)
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(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 mandatory provisions of Section 41 and 41-A
and 60-A of Cr.P.C.
8.22. 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 (Supr). 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. Merely because an arrest can
be made because it is lawful, does not mandate that
arrest must be made. As emphasized by the Apex
Court, a distinction must be made between the
existence of the power to arrest and the justification for
exercise of it. It is further observed that if arrests are
made in a routine manner, it could cause incalculable
harm to the reputation and self-esteem of a person and
that presumption of innocence is a facet of Article 21,
which would enure to the benefit of the accused.
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8.23. 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. for the reasons set out hereinabove. It does
not disclose as to whether the arrest was necessary for
one or more purpose (s) as envisaged in the said
provision. The same is also in contravention of the
directions given by the Apex Court in Arnesh Kumar
(Supra), in particular, the direction stipulated in para
11.2 and 11.3. ...
8.24 Accordingly, in the facts, we hold that 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. ..."
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
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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 in
Order dated 09.01.2023 cannot be construed as tentative view or
prima facie observations solely for the reason that the Court had
granted interim bail.
23. Be that as it may, the only other material which has now been
placed before us is the case dairy which purportedly records the
reasons of arrest. A perusal of the case diary reveals that the
petitioners were served with notice dated 27.06.2022 under Section
41A for appearance on 4.7.2022. The petitioners had requested to
postpone the date to 08.07.2022 and accordingly, they appeared
before the Investigating Officer on 08.07.2022 and were duly
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interrogated. In the meantime, the co-accused V.N.Dhoot was also
interrogated with respect to the allegations of quid pro qua of Rs.64
Crores and transfer of flat owned by Videocon to Quality Advisory
Trust of Deepak Kochhar.
24. On 15.12.2022, the Investigating Officer issued notices under
Section 41A to the petitioners as well as to the co-accused
V.N.Dhoot, on the ground that there were several inconsistencies in
their statements which were not satisfactorily answered and it was
necessary to call and confront them with one another for proper
investigation and for taking the case to its logical end.
25. Mr. V.N.Dhoot was interrogated on 22.12.2022, and the
petitioners had expressed their inability to appear on the scheduled
date as they had to attend the hearing of another matter listed before
this Court. The date of appearance was fixed on 23.12.2022. Both
the petitioners appeared before the Investigating Officer on
23.12.2022 at about 2.00 p.m. They were interrogated and on the
same date, at about 4.30 p.m. they were placed under arrest.
26. The reasons for the arrest as recorded in the case dairy are that
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(1) The petitioners are not cooperating with the investigation (2)
their custodial interrogation is required to unearth (a) the entire
gamut of conspiracies which led to sanction of term loan of Rs.1875
Crores to financially belligerent Videocon Group of Companies
between June 2009 and April 2012,and (b) to unearth the
conspiracy hatched for creation of complex financial structure to
conceal the identity for quid pro qua of Rs.64 Crores by the
petitioner Chanda Kochhar in the company account of her husband
and transfer of flat situated at 45 CCI Chambers, valued at Rs.5.25
Crores to the family members of petitioner Deepak Kocchar for
Rs.11 Crores in the 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
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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, whereas drawing inference
therefrom alone is a subjective process. Only check upon the
subjective power is the existence of circumstances/material
information. In case it is established that there was no material
information or factual basis, the exercise of power becomes illegal.
It is thus within the powers of the Court to ensure that the
subjective satisfaction is on factual basis and not on the basis of the
whims or caprice of the investigating agency.
28. In the instant case, the preliminary enquiry relating to the
sanctioning of loan to the Videocon Group of Companies in
violation of Banking Regulations and Guidelines since the year
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2009 to 2012 was registered in the year 2017. The petitioners
were questioned in the course of the preliminary inquiry, and
subsequently the FIR was registered on 22.01.2019. The
petitioners were named as accused in the said FIR for the alleged
offences of criminal conspiracy and cheating. Despite the gravity
of the offence, the petitioners were not interrogated or summoned
for a period of over three years from the date of registration of the
crime. They were served with notice under Section 41A dated
27.06.2022 thereby indicating that their arrest was not required in
the said crime under the provisions of sub-section (1) of Section 41
Cr.P.C. The petitioners complied with the terms of the notice and
appeared before the Investigating Officer and were duly
interrogated. Furthermore, in compliance with the notice dated
15.12.2022, under Section 41A, the petitioners appeared before the
Investigating Agency on 23.12.2022. It is on this date that they
were placed under arrest, on the ground of non co-operation and
purportedly to unearth the entire gamut of conspiracy which led to
sanctioning of term loan of Rs.1875 Crores to financially
beleaguered Videocon Group of Companies between June 2009 to
April 2012.
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29. It is relevant to note that though it is within the powers of the
Investigating Agency to interrogate the accused has a right to
remain silent. The right to silence emanates from Article 20(3) of
the Indian Constitution, which gives an accused the right against
self incrimination. Suffice it to say that exercise of the right to
remain silent cannot be equated with non co-operation. Reliance is
placed on the decision in Santosh Dwarkadas Fajat and Pankaj
Sansal (supra)
30. The allegations that the petitioners are involved in the
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
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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 the law amounts to an abuse of power and does not
satisfy the requirement of Section 41A(3) Cr.P.C.
31. To sum up, 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.
32. The petitioners have also alleged breach of Section 46 of
Cr.P.C. for the reason that the arrest of the petitioner Chanda
Kochhar was not effected by a lady police officer. Section 46
provides the mode of arreset. Sub Section 1 of Section 46 provides
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that in making an arrest the police officer or other person making
the same shall actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody by word or
action. Proviso to this sub section provides that where a woman is
to be arrested, unless the circumstances indicate to the contrary, her
submission to custody on an oral intimation of arrest shall be
presumed and unless the circumstances otherwise require or unless
the police officer is a female, the police officer shall not touch the
person of the woman for making her arrest. Sub Section 4
prescribes the procedure of arrest of woman after sunset and before
sunrise.
33. 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. Hence, we are of the view
that there was no contravention of Section 46 or 60A Cr.P.C.
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33. Under the circumstances, and for the reasons supra, 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
in terms of prayer clause (b). The Interim bail granted by order
dated 9.1.2023 is confirmed. The petitions and the interim
applications, if any, stand disposed of in above terms.
( N.R.BORKAR, J.) (ANUJA PRABHUDESSAI, J.)
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