Explained: Why Did Bombay HC Call Chanda Kochhar's Arrest Illegal?

The Central Bureau of Investigation is likely to move Supreme Court against the Bombay High Court's illegal arrest verdict in the Chanda Kochhar case. 

Whether the arrest was made contrary to the constitutional mandate and statutory provisions and consequently, whether the petitioners are entitled to be released on interim bail is the central issue in the case.

Calling the arrest illegal, Senior Counsel Amit Desai representing Chanda Kocchar said that there was no occasion whatsoever to arrest the petitioner. 

Chanda Kochhar cooperated fully with CBI says Senior Counsel Amit Desai

In the instant case, 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. The 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.

Desai argued that CBI by arresting the petitioner had contravened the constitutional mandate and statutory rights granted to the petitioner. The 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.

What do landmark case laws say on  arrest

The Apex Court in the case of Satender Kumar Antil has issued certain directions to investigating agencies and the courts; has discussed arrest in cognizable offences, the mandate of Section 41, effect of its non-compliance while considering the bail application; has issued directions to ensure that police officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically; has held that Sections 41 and 41-A are facets of Article 21 of the Constitution; and has issued certain guidelines for avoiding unwarranted arrest, amongst other directions/observations.

The police officer has 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. 25. The consequence of non-compliance with Section 41 shall certainly enure 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.  

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. 

Was the arrest necessary as per law?

As per sections 41 and 41A of CrpC, 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.  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. 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, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.  

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 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. 

Arrest is not mandatory; the notice issued under Section 41-A is to ensure that the persons upon whom notice is served, are 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.

Necessity of arrest spelt out under law

The necessity to arrest is spelt out in Section 41 (1)(b)(ii) from (a) to (e) i.e. (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) unless such a person is arrested, his presence in the Court whenever required cannot be ensured.  

Ground for arrest contrary to law

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/set-out 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. 

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.

Personal liberty of individuals an important constitutional mandate says Bombay HC

While delivering the verdict, the court was of the view 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 its 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 ensure to the benefit of an accused.

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. 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.

Bombay HC reiterates the principles laid down in Arnesh Kumar; facts warrant release on bail

The Bombay High Court reiterated the principles laid down in Arnesh Kumar. In the said judgement it was held that all police officers be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii); 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.

"Non-compliance of the mandate of Section 41(1)(b)(ii), Section 41-A and Section 60-A of Cr.P.C will enure the benefit of the petitioners, warranting their release on bail", the Bombay High Court said.