Punjab-Haryana High Court
Ashish Kakkar vs Ut Of Chandigarh on 30 January, 2025
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
Neutral Citation No:=2025:PHHC:013798
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-8-2025
Reserved on: 17.01.2025
Pronounced on: 30.01.2025
Ashish Kakkar ..... Petitioner
Versus
UT of Chandigarh ......Respondent
CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ
Present: Mr.Sanjay Kaushal, Senior Advocate with
Mr. Arjun Kaushal, Advocate and
Mr. Abhimanyu Kaushal, Advocate, for the petitioner.
Mr. Amit Jhanji, Senior Standing Counsel with
Mr. Hakikat Grewal, Advocate,
Mr. Shashank Sharma, Advocate and
Mr. Rahul Vij, Advocate, for the respondent UT Chandigarh.
Rajesh Bhardwaj, J.
1. Present petition has been filed under Section 528 of Bhartiya
Nagrik Suraksha Sanhita, 2023 seeking quashing of impugned arrest order
of the petitioner dated 30.12.2024 in FIR No.33/2022, dated 03.09.2022,
registered under Sections 384, 420, 468, 471, 509 and 120-B IPC, at Police
Station Cyber Cell, Chandigarh and all the consequential proceedings
arising therefrom including the impugned order dated 30.12.2024 passed by
the Court of learned JMIC, Chandigarh remanding the petitioner to three
days police custody.
2. Succinctly, facts of the case are that the FIR in the present case
has been lodged on the statement of the complainant, namely, Arvind
Kumar. It was alleged that he received an SMS on his mobile phone
No.9216020505 for loan, which contained a link. Upon clicking, an
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application of Hugo loan was opened, which requested his access and he
allowed. He filled up his details and his loan eligibility was shown as of
Rs.3,500/-. He did not require the loan and hence, he uninstalled the
application, but thereafter, he received a whatsapp call from numbers
+37125218379, +6283146262636, +919910429137 and was threatened by
demanding money. He was told that access of his gallery and contact was
with them. Thereafter, they started sending his and his family members
nude photos after morphing through whatsapp and started demanding
money. Thereafter, he received a call from phone No.7015153485 that if he
would not give the money, then his photos would be made viral. The
payment link was sent to him. Out of fear, he sent Rs.2,045/- on 24.08.2022
and Rs.3,500/-, Rs.3,500/- on 30.08.2022. Despite that, threat of making his
photos viral kept on coming and demand of money continued. He prayed
that as he was being blackmailed, action be taken against the culprits. On
registration of the FIR, the investigation commenced. During the
investigation, the Investigating Agency found complicity of various accused
and arrested them. On 29.12.2024, co-accused Manoj Rathore was arrested
and during his interrogation, he made disclosure about the complicity of one
Puneet Kumar and Ashish Kakkar (petitioner). Thus, the petitioner was
arrayed as an accused. Investigating Agency arrested the accused petitioner
on 30.12.2024 from Hotel Jaypee Siddharth, Rajender Nagar, New Delhi.
He was produced before learned Illaqa Magistrate on 30.12.2024 at 6:00
p.m. Learned Magistrate remanded the petitioner to the police custody for 3
days vide impugned order dated 30.12.2024. Aggrieved by the same, the
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petitioner is before this Court by way of filing the present petition.
3. Learned Senior counsel for the petitioner while opening his
arguments, has vehemently contended that arrest of the petitioner is a
travesty of justice and same has been made in gross violation of the Article
22 of the Constitution of India and statutory provisions of Cr.P.C. viz
Sections 50, 41 and 41-A Cr.P.C. etc. He has assailed the impugned order
primarily on the following grounds:-
(i) The maximum punishment for the offence, for which the
petitioner has been arrested, is 07 years and hence, his arrest is
in violation of the law laid down by Hon’ble Supreme Court in
Arnesh Kumar Vs. State of Bihar and another, (2014) 8
SCC 273.
(ii) There is a gross violation of the provisions of Article 22 of
the Constitution of India and Sections 41 and 41-A Cr.P.C.
(iii) The impugned remand order has been passed by learned
Magistrate in a highly mechanical and cavalier manner totally
ignoring the law of land as held by Hon’ble Supreme Court in
Arnesh Kumar‘s case (supra).
(iv) The petitioner has not been apprised with the grounds of
arrest on the basis of which he was arrested by the Investigating
Agency.
(v) The petitioner was produced before the Magistrate on
30.12.2024 at 6:00 p.m. without having been granted any
opportunity to seek the legal assistance from his Advocate.
4. Learned Senior counsel for the petitioner has vehemently
contended that as per fundamental right enshrined under Article 22 of the
Constitution of India, no person who is arrested, shall be detained in
custody without being informed the grounds of arrest and he cannot be
denied the right to consult and to be defended by a legal practitioner of his
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choice. He submits that relevant provisions enshrined in the Cr.P.C. are
Section 50, 41 and 41-A Cr.P.C. It has been submitted that as per the
provisions of Section 41-A Cr.P.C., it is mandatory for the police officer to
issue notice to a person before his arrest as per the settled proposition of
law, however, neither the petitioner was apprised of grounds of arrest nor he
was provided any opportunity to seek legal assistance and thus, he was
arrested in blatant violation of law of land. While relying upon the law
settled by Hon’ble Supreme Court in Prabir Purkayastha vs. State (NCT
of Delhi), (2024) 8 SCC 254; Pranav Kuckreja (in Police Custody) vs.
State (NCT of Delhi), passed in W.P.(CRL) No.3476/2024 on 18.11.2024;
Hem Prabhakar Shah vs. The State of Maharashtra, 2024 SCC OnLine
Bom 3006 and Satender Kumar Antil vs. Central Bureau of
Investigation and another, (2022) 10 SCC 51, he has submitted that
requirement to communicate the ground of arrest or the grounds of
detention in writing, to a person arrested in connection with an offence as
provided under Article 22 (1) and 22 (5) of the Constitution of India is
sacrosanct and cannot be breached in any situation. Non-compliance of this
constitutional requirement and statutory mandate would lead to the custody
or the detention being rendered illegal. He has laid emphasis on the
observations made by Hon’ble Supreme Court in para 48 of Prabir
Purkayastha‘s case (supra) that there is a significant difference in phrase
‘reasons for arrest’ and ‘grounds of arrest’. He has submitted that as both
are distinct phrases, then simply giving reasons of arrest was not sufficient
and it was mandatory for the Investigating Agency to disclose the grounds
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of arrest to the petitioner but the same has not been done at the time of
arrest of the petitioner. He has further relied upon the ratio of the law laid
down by Hon’ble Supreme Court in Satender Kumar Antil’s case (supra)
and has submitted that Hon’ble Supreme Court has concluded by giving
various directions wherein the Investigating Agency and their officers were
held duty bound with the mandate of Section 41 and 41-A Cr.P.C. He
further submits that it was directed that Courts have to satisfy themselves
about the compliance of Section 41 and 41-A Cr.P.C. and any non-
compliance would entitle the accused to be released forthwith. To buttress
his argument, he has submitted that in pursuance to the directions given by
the Hon’ble Supreme Court, this Court had issued notification dated
22.09.2023, wherein, it had been notified that notice of appearance in terms
of Section 41-A Cr.P.C. should be served on the accused within two weeks
from the date of institution of the case. It has been submitted by learned
Senior Counsel that the Investigating Agency had issued notice under
Section 41-A Cr.P.C. to the co-accused, namely, Puneet Kumar on
07.05.2023, however, no such notice was ever issued to the petitioner and
thus, his arrest is totally in violation of his fundamental rights as enshrined
under Article 22 of the Constitution of India and the provisions of Section
50, 41 and 41-A Cr.P.C. He has further submitted that learned Illaqa
Magistrate was duty bound to record his satisfaction before granting the
police remand of the petitioner, however, the impugned order is totally in
violation of the law settled. He thus, submits that the arrest of the petitioner
and the impugned order dated 30.12.2024 granting his police remand being
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unsustainable in the eye of law deserves to be set aside and the petitioner
deserves to be set at liberty.
5. Learned Senior Counsel appearing for UT, Chandigarh has
vehemently opposed the submissions made by learned Senior Counsel for
the petitioner. He has submitted that the case in hand is of sensitive nature
and the petitioner before this Court is the master mind of the offence
committed. He submits that the offence in the present case was committed
with deep rooted conspiracy with the handlers located in China. He submits
that after registration of the FIR, the Investigating Agency recorded
statement of the complainant and the Customer Acquisition Form (CAF)
and Call Detail Record (CDR) of mobile number 7015153485 were
obtained and these were found to be in the name of Gyandeep son of Sukbir
Singh resident of Rewari. He submits that letter was sent to Google to
obtain information about the Hugo Loan application and on receiving the
information, it led to the discovery that the Hugo Loan application was
registered in China with the IP detail also traced to Singapore and China. He
submits that based on the calling number 7015153485, six persons were
found at the location engaged in calling operations with laptops open in
front of them. Gyandeep disclosed that he alongwith other suspects was
working for ‘Jituloan’ with team leaders included Sidarth @ Manish Rai
and other accused. He also identified that their top boss was a Chinese
person, who provided them with work under the Jituloan scheme and thus,
Gyandeep was arrested. Thereafter, five other accused were arrested and
they revealed details about the operation, stating that they were
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blackmailing people after getting access to their mobile phones, contacts
and gallery via loan applications such as Hugo Loan, A.K. Loan, Cash Loan
and others. He further submits that on 07.09.2022, a raid was conducted and
suspect Sidarth @ Manish Rai was arrested. He further submits that during
further investigation, on conducting raid at Flat No.9061, Tower No.9, ATS
Paradise, Greater Noida, UP, one Chinese person, namely, Wan Chengua
was arrested, who was identified by co-accused Anshul. It is submitted by
learned Senior Counsel that on the arrest of co-accused, transaction in
various accounts were analyzed, which revealed that funds were transferred
into accounts held by companies as such Malista Forwarding Freight
Limited and Sky Bird Traders. Thus, co-accused Manoj Rathore was
arrested on 29.12.2024. It was his arrest which led to disclosure of
involvement of Punit Kumar and Ashish Kakkar (petitioner). Thus,
petitioner Ashish Kakkar was arrested for his role in the scam on
30.12.2024. It has been further submitted by learned Senior Counsel that the
petitioner is a habitual offender and apprehending action against him, he
started changing his locations, switching off his mobile phone and tried to
flee from the Investigating Agency. Learned Senior Counsel has produced
on record the case diary as well, wherein, the Investigating Agency recorded
the conduct of the petitioner and thus, recorded their satisfaction that the
petitioner adopted all the methods to escape from the clutches of law. He
produced the case diary pertaining to 29.12.2024 and 30.12.2024. He
submits that the Investigating Agency on receiving information went to
Delhi, however, the petitioner switched off his mobile phone, kept on
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changing his locations and one of the locations was found to be near Airport
as well. The petitioner’s mother refused to accept any notice by saying that
she has been stopped by her son from accepting any notice. He has further
submitted that the petitioner alongwith his wife was staying in Jaypee
Siddharth Hotel, where his wife was communicated the grounds of arrest of
the petitioner through notice. Learned Senior Counsel has submitted that the
argument raised by learned Senior Counsel for the petitioner that mandatory
notice under Section 41-A Cr.P.C. was not served upon the petitioner, is
totally misconceived. He has drawn the attention of this Court to the
provisions of Sections 41 and 41-A Cr.P.C. It has been submitted that as per
mandate of Section 41-A Cr.P.C., where arrest of a person is not required
under the provisions of Sub Section (1) of Section 41, it is then the
provisions of Section 41-A Cr.P.C. are to be invoked. However, as per the
provisions of Section 41 Cr.P.C., the Police has the power to arrest a person
without warrant subject to conditions as enshrined under Section 41(1)(b)
Cr.P.C. He submits that all the conditions enshrined in the aforesaid
mentioned Sections, were fulfilled and thus, arrest of the petitioner was
essential in this case. He, thus, submits that as the arrest of the person was
required under Sub Section (1) of Section 41 Cr.P.C., hence, Section 41-A
Cr.P.C. is not at all applicable in the present case. To buttress his
arguments, he relied upon the findings given by Hon’ble Supreme Court in
Arnesh Kumar‘s case (supra), wherein, it has been held that the 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.
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He has submitted that Hon’ble Supreme Court has specifically held that
provisions of Section 41-A Cr.P.C. makes it clear that in all cases where
arrest of a person is not required under the provisions of Sub Section (1) of
Section 41, the Police Officer is required to issue notice directing the
accused to appear before him at the specified place and time. However, as
evident from the facts and circumstances of the case, the Investigating
Agency in the present case recorded their satisfaction that arrest of the
petitioner is required under Section 41(1) Cr.P.C. and thus, as per law
settled, the provisions of Section 41-A Cr.P.C. are not applicable in the
present case. He submits that at the time of arrest, arrest memo dated
30.12.2024 was prepared, which was duly signed by the petitioner. This
arrest memo specifically contained that the petitioner was arrested on the
disclosure of accused Manoj Rathore and Puneet Kumar. He submits that
after having been arrested, the petitioner was duly produced before learned
Illaqa Magistrate, Chandigarh and application for obtaining his remand was
filed. It is submitted that learned Magistrate after perusing the material
produced before it, duly recorded its satisfaction as per mandate of the law
laid down and granted judicial remand. The petitioner was also allowed to
inspect the record by the Court and after having been granted remand, he
duly engaged his counsel. He has also submitted that after having been
passed the impugned order dated 30.12.2024, two more remand orders dated
02.01.2025 and 05.01.2025 have been passed and the same have not been
challenged by the petitioner. He submits that the petitioner was duly
represented by his counsel at the time of passing of these orders. He submits
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that presently the petitioner is in judicial custody. It is submitted by learned
Senior Counsel that the respondent-State had duly complied with the
constitutional and statutory provisions and the law settled by Hon’ble
Supreme Court. It is further submitted that there being no illegality
whatsoever in the arrest and the remand order of the petitioner, the present
petition being devoid of any merit deserves to be dismissed.
6. The Court has heard Senior counsel for both the sides and
perused the record with their able assistance. The precise issue involved in
the present case is whether the arrest of the petitioner on 31.12.2024 and
remand order, are sustainable in the eyes of law or not. To answer the same,
relevant provision for the appreciation is Article 22 of the Constitution of
India, which reads as under:-
“22. Protection against arrest and detention in certain
cases:-
(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall
be produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply–
(a) to any person who for the time being is an enemy
alien; or
(b) to any person who is arrested or detained under any
law providing for preventive detention.
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the detention of a person for a longer period than three months
unless–
(a) an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as, Judges of
a High Court has reported before the expiration of the
said period of three months that there is in its opinion
sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise
the detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub-
clause (b) of clause (7); or
(b) such person is detained in accordance with the
provisions of any law made by Parliament under sub-
clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to
such person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a
representation against the order.
(6) Nothing in clause (5) shall require the authority making any
such order as is referred to in that clause to disclose facts which
such authority considers to be against the public interest to
disclose.
(7) Parliament may by law prescribe–
(a) the circumstances under which, and the class or
classes of cases in which, a person may be detained for a
period longer than three months under any law providing
for preventive detention without obtaining the opinion of
an Advisory Board in accordance with the provisions of
sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any
class or classes of cases be detained under any law
providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in
an inquiry under sub-clause (a) of clause (4).”
7. Sections 50 Cr.P.C. reads as under:-
“50. Person arrested to be informed of grounds of arrest
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and of right to bail.
(1) Every police officer or other person arresting any person
without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other
grounds for such arrest.
(2) Where a police officer arrests without warrant any person
other than a person accused of a non-bailable offence, he shall
inform the person arrested that he is entitled to be released on
bail and that he may arrange for sureties on his behalf.”
8. The main thrust of learned Senior Counsel for the petitioner is
to the effect that the petitioner was not made aware with the grounds of
arrest on the basis of which he has been arrested. He has submitted that as
per law settled, reasons of arrest and grounds of arrest are two different
terms and the same have been answered by Hon’ble Supreme Court in para
No.48 of Prabir Purkayastha‘s case (supra), which reads as under:-
48. It may be reiterated at the cost of repetition that there is a
significant difference in the phrase ‘reasons for arrest’ and
‘grounds of arrest’. The ‘reasons for arrest’ as indicated in the
arrest memo are purely formal parameters, viz., to prevent the
accused person from committing any further offence; for proper
investigation of the offence; to prevent the accused person from
causing the evidence of the offence to disappear or tempering
with such evidence in any manner; to prevent the arrested
person for making 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 Investigating
Officer. These reasons would commonly apply to any person
arrested on charge of a crime whereas the ‘grounds of arrest’
would be required to contain all such details in hand of the
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accused. Simultaneously, the grounds of arrest informed in
writing must convey to the arrested accused all basic facts on
which he was being arrested so as to provide him an
opportunity of defending himself against custodial remand and
to seek bail. Thus, the ‘grounds of arrest’ would invariably be
personal to the accused and cannot be equated with the ‘reasons
of arrest’ which are general in nature.”
9. Learned Senior counsel for the petitioner has submitted that
power of arrest flows from Article 22 of the Constitution of India. It had
also been agitated that no notice under Section 41-A Cr.P.C. was issued to
the petitioner. However, from the perusal of the record produced by the
State, it is deciphered that name of the petitioner surfaced in the present
case on the disclosure statement made by co-accused Manoj Rathore on
29.12.2024. On recording of this disclosure, the Investigating Agency
reached Delhi i.e. place of residence of the petitioner, however, he kept on
changing his locations. He did not use his driver and the car, in which he
used to travel. Perusal of the case diary produced by the State would
substantiate the submissions made by learned Senior Counsel for the State.
The petitioner refused to accept the notice under Section 35(3) of BNSS,
2023 issued by the Investigating Officer on the ground that he did not want
to take any kind of notice as instructed by his Advocate. His mother Asha
Kakkar also refused to accept any notice/summon in the name of her son
Ashish Kakkar, as he had stopped her to accept the same. Thus, on his arrest
from Jaypee Siddharth Hotel, an intimation of his arrest was given to his
wife Akanksha. Arrest memo dated 30.12.2024 was duly signed by the
petitioner and it read that he has been arrested as per the disclosure of
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accused Manoj Rathore and Puneet Kumar. The petitioner was produced
before learned Illaqa Magistrate on 30.12.2024 and the remand application
with details of the grounds were duly mentioned. Learned Magistrate on
drawing his satisfaction granted the police remand of three days vide
impugned order dated 30.12.2024. As submitted by learned Senior Counsel
for the petitioner, Hon’ble Supreme Court in Satender Kumar Antil’s case
(supra) had given directions, which are as follows:-
“Summary/Conclusion
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 may be subject to State
amendments.:
100.1. The Government of India may consider the
introduction of a separate enactment in the nature of a Bail
Act so as to streamline the grant of bails.
100.2. The investigating agencies and their officers are
duty-bound to comply with the mandate of Section 41 and
41-A 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 41-A of the Code. Any non-
compliance would entitle the accused for grant of bail.
100.4. All the State Governments and the Union Territories
are directed to facilitate standing orders for the procedure to
be followed under Section 41 and 41-A of the Code while
taking note of the order of the High Court of Delhi dated
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07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the
standing order issued by the Delhi Police i.e. Standing
Order No. 109 of 2020, to comply with the mandate of
Section 41-A of the Code.
100.5. There need not be any insistence of a bail application
while considering the application under Section 88, 170,
204 and 209 of the Code.
100.6. There needs to be a strict compliance of the
mandate laid down in the judgment of this court
in Siddharth (supra).
100.7. The State and Central Governments will have to
comply with the directions issued by this Court from time to
time with respect to constitution of special courts. The High
Court in consultation with the State Governments will have
to undertake an exercise on the need for the special courts.
The vacancies in the position of Presiding Officers of the
special courts will have to be filled up expeditiously.
100.8. The High Courts are directed to undertake the
exercise of finding out the undertrial prisoners who are not
able to comply with the bail conditions. After doing so,
appropriate action will have to be taken in light of Section
440 of the Code, facilitating the release.
100.9. While insisting upon sureties the mandate of Section
440 of the Code has to be kept in mind.
100.10. An exercise will have to be done in a similar
manner to comply with the mandate of Section 436-A of the
Code both at the district judiciary level and the High Court
as earlier directed by this Court in Bhim Singh (supra),
followed by appropriate orders.
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100.11. Bail applications ought to be disposed of within a
period of two weeks except if the provisions mandate
otherwise, with the exception being an intervening
application. Applications for anticipatory bail are expected
to be disposed of within a period of six weeks with the
exception of any intervening application.
100.12. All State Governments, Union Territories and High
Courts are directed to file affidavits/ status reports within a
period of four months.”
10. Perusal of the record would show that the Investigating Agency
has duly taken care of the compliance of the directions issued by the
Hon’ble Supreme Court. Regarding the issue raised by learned Senior
Counsel for the petitioner for violation of Section 41-A Cr.P.C., both the
Sections 41 and 41-A Cr.P.C. are relevant, which read as under:-
41. When police may arrest without warrant.
(1) Any police officer may without an order from a Magistrate
and without a warrant, arrest any person –
(a) who commits, in the presence of a police office, a
cognizable offence;
(b) 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 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, if the
following conditions are satisfied, namely :-
(i) the police 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
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(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 reason in writing;
[Provided that a police officer shall, in all the cases
where the arrest of a person is not required under the
provision of this sub-section, record the reasons in
writing for not making the arrest.]
(ba) against whom credible information has been received that
he has committed a cognizable offence punishable with
imprisonment far a term which may extend to more than seven
years whether with or without fine or with death sentence and
the police officer has reason to believe on the basis of that
information that such person has committed the said offence;]
(c) who has been proclaimed as an offender either under this
Code or by order of the State Government; or
(d) in whose possession anything is found which may
reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with
reference to such thing; or
(e) who obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape, from lawful
custody; or
(f) who is reasonably suspected of being a deserter from any of
the Armed Forces of the Union; or –
(g) who has been concerned in, or against whom reasonable
complaint has been made, or credible information has been
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received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India
which if committed in India, would have been punishable as an
offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained
in custody in India; or
(h) who, being a released convict, commits a breach of any
rule, made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has
been received from another police officer, provided that the
requisition specifies the person to be arrested and the offence or
other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.
[(2) Subject to the provisions of Section 42, no person
concerned in a non-cognisable offence or against whom a
complaint has been made or credible information has been
received or reasonable suspicion exists of his having so
concerned, shall be arrested accept under a warrant or order of
a Magistrate.]
[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 a reasonable suspicion exists that he has
committed a cognisable offence, to appear before him or at
such other place as may 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
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the notice, he shall not be arrested in respect of the offence
referred to in the notice unless, for 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.”
11. Reading of the statutory provisions of Sections 41 and 41-A
Cr.P.C. would make it clear that the police officer can arrest any person
without warrant subject to the condition as mentioned in above-said Section
as (a) to (e) of Clause of Section 41 Cr.P.C. So far as Section 41-A Cr.P.C.
is concerned, reading of the same would clarify that the same is to be
invoked when the arrest of a person is not required under the provisions of
Sub Section (1) of Section 41 Cr.P.C. However, from the voluminous record
produced by the State in the present case, it is apparent that the
Investigating Agency was satisfied that arrest of the petitioner was required
under Section 41 Cr.P.C. Thus, when the Investigating Agency required the
arrest of a person under Section 41 Cr.P.C., then there was no occasion for
invoking the provisions of Section 41-A Cr.P.C. Hon’ble Supreme Court in
Arnesh Kumar‘s case (supra) has held in para No.7.1, which reads as
under:
“7.1 From a plain reading of the aforesaid provision, it is
evident that a person accused of 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 its satisfaction that
such person had committed the offence punishable as aforesaid.
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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.”
12. The requirement of arrest of the petitioner was recorded by the
Investigating Officer in the case diary, thus, there was no occasion for the
Investigating Agency to issue any notice to the petitioner under Section 41-
A Cr.P.C. It is apposite to note that counsel for the petitioner was allowed to
inspect the record and after having been granted the police remand on
30.12.2024, two more remand orders dated 02.01.2025 and 05.01.2025 were
passed, wherein remand of 3 days and 5 days respectively, were granted by
learned Magistrate. While granting these two remands, the petitioner was
duly represented by his counsel. The record further shows that complicity of
the petitioner is not only in the present case, but he is involved in many
other cases as well.
13. There is no dispute regarding the law relied upon by learned
Senior Counsel for the petitioner, however, on a combined reading of
Article 22 of the Constitution of India with the provisions of Sections 41,
41-A and 50 Cr.P.C., it is apparent that for every case where the sentence is
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seven years or less than seven years, it is not mandatory for the
Investigating Agency to issue notice under Section 41-A Cr.P.C. The
legislature has duly laid the condition that only when the Investigating
Officer is satisfied that the arrest of the accused is not required under
Section 41(1) Cr.P.C., it is only then notice under Section 41-A Cr.P.C. can
be given. Even otherwise, the investigation lies in the domain of the
Investigating officers and the Courts have to be circumspect in issuing
direction that how and in what manner, the investigation is to be conducted.
Ho’nble Supreme Court in Arnab Manoranjan Goswami vs. State of
Maharashtra and others, 2021(2) SCC 427 has held as under:-
“60. Human liberty is a precious constitutional value, which is
undoubtedly subject to regulation by validly enacted
legislation. As such, the citizen is subject to the edicts of
criminal law and procedure. Section 482 recognizes the
inherent power of the High Court to make such orders as are
necessary to give effect to the provisions of the Cr.P.C. “or
prevent abuse of the process of any Court or otherwise to
secure the ends of justice”. Decisions of this court require the
High Courts, in exercising the jurisdiction entrusted to them
under Section 482, to act with circumspection. In emphasising
that the High Court must exercise this power with a sense of
restraint, the decisions of this Court are founded on the basic
principle that the due enforcement of criminal law should not
be obstructed by the accused taking recourse to artifices and
strategies. The public interest in ensuring the due investigation
of crime is protected by ensuring that the inherent power of the
High Court is exercised with caution. That indeed is one – and
a significant – end of the spectrum. The other end of the
spectrum is equally important: the recognition by Section 482
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of the power inhering in the High Court to prevent the abuse of
process or to secure the ends of justice is a valuable safeguard
for protecting liberty. The Code of Criminal Procedure 1898
was enacted by a legislature which was not subject to
constitutional rights and limitations; yet it recognized the
inherent power in Section 561A. Post- Independence, the
recognition by Parliament, of the inherent power of the High
Court must be construed as an aid to preserve the constitutional
value of liberty. The writ of liberty runs through the fabric of
the Constitution. The need to ensure the fair investigation of
crime is undoubtedly important in itself, because it protects at
one level the rights of the victim and, at a more fundamental
level, the societal interest in ensuring that crime is investigated
and dealt with in accordance with law. On the other hand, the
misuse of the criminal law is a matter of which the High Court
and the lower Courts in this country must be alive. In the
present case, the High Court could not but have been cognizant
of the specific ground which was raised before it by the
appellant that he was being made a target as a part of a series of
occurrences which have been taking place since April 2020.
The specific case of the appellant is that he has been targeted
because his opinions on his television channel are unpalatable
to authority. Whether the appellant has established a case for
quashing the FIR is something on which the High Court will
take a final view when the proceedings are listed before it but
we are clearly of the view that in failing to make even a prima
facie evaluation of the FIR, the High Court abdicated its
constitutional duty and function as a protector of liberty. Courts
must be alive to the need to safeguard the public interest in
ensuring that the due enforcement of criminal law is not
obstructed. The fair investigation of crime is an aid to it.
Equally it is the duty of courts across the spectrum – the district
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judiciary, the High Courts and the Supreme Court – to ensure
that the criminal law does not become a weapon for the
selective harassment of citizens. Courts should be alive to both
ends of the spectrum – the need to ensure the proper
enforcement of criminal law on the one hand and the need, on
the other, of ensuring that the law does not become a ruse for
targeted harassment. Liberty across human eras is as tenuous as
tenuous can be. Liberty survives by the vigilance of her
citizens, on the cacophony of the media and in the dusty
corridors of courts alive to the rule of (and not by) law. Yet,
much too often, liberty is a casualty when one of these
components is found wanting.”
14. While weighing the overall facts and circumstances on the
anvil of law settled, this Court does not find any illegality in the arrest of the
petitioner and the impugned remand order dated 30.12.2024. Thus, finding
no merit in the present petition, the same is hereby dismissed.
15. Nothing said herein shall be construed as an expression of
opinion on the merits of the case.
(RAJESH BHARDWAJ)
30.01.2025 JUDGE
sharmila Whether Speaking/Reasoned : Yes/No
Whether Reportable : Yes/No
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