Delhi HC Flags CBI's Contradictory Approach, Highlights Difference Between Notice To Witness U/S 160 CrPC And Notice To Accused U/S 41A CrPC

Justice Vikas Mahajan observed “The law is clear that a person accused of a cognizable offence punishable with imprisonment for a term which may be less than 07 years or which may extend to 07 years whether with or without fine can be arrested by the police officer without an order from a Magistrate and without a warrant if the conditions mentioned in Section 41(1)(b)(ii) are satisfied. However, where the arrest of a person is not required under the provisions of Section 41(1), the investigating officer is obliged to follow the procedure as provided in Section 41A CrPC.”

The petitioner sought anticipatory bail in connection with FIR under Section 120B read with Section 420 IPC (cheating) and Sections 66C (identity theft) and 66D (cheating through impersonation by using computer resource) of the IT Act, 2000.

A case was registered against one Amit Kumar for allegedly duping a man of Rs. 1.98 lakh by posing as a Blue Dart representative and sending an SMS link through which the victim filled in the name of his bank, mobile number and UPI PIN. During the investigation, the accused Amit Kumar revealed that the petitioner was also involved in the case and that he used to purchase ATM cards and SIM cards of mobile numbers for the offence.

The CBI issued two notices under Section 160 CrPC to the petitioner. CBI stated that both these notices were not complied with by the petitioner, who subsequently filed the present application.

The petitioner simultaneously also filed another petition for quashing the Section 160 CrPC notices. During the proceedings, CBI withdrew the notice under Section 160 CrPC stating that the same was issued inadvertently and that a notice under appropriate section would be issued. In view of this, the Court had thus disposed of the petition.

In the present petition, the petitioner contended that though he has been alleged to be an accused, no notice under 41A CrPC was served upon him. He submitted that as Section 420 IPC is punishable with imprisonment up to 7 years, it is mandatory to serve the accused with a notice under Section 41A CrPC before arrest.

He further contended that Section 160 CrPC applies to witnesses or possible witnesses and that the attendance of an accused cannot be required by giving such notice. He submitted that the withdrawal of Section 160 notices against him showed ill-intent of the CBI.

On the other hand, the CBI submitted that as the investigation was still open and at an initial stage, it would serve the petitioner with an appropriate notice as and when required. As per the Court's directions, the CBI had filed a Status Report indicating that no notice under Section 41A CrPC was issued to the petitioner and that he had already joined the investigation.

The High Court noted that in the petition challenging Section 160 CrPC notice, CBI had stated that as the complicity of the petitioner in the commission of the offence was not certain, notices under Section 160 CrPC were issued. However, subsequently, the CBI said that the notices under Section 160 CrPC were inadvertently issued and the same stood withdrawn.

The Court remarked that the CBI has no clarity as to the role of the petitioner. It noted that while on one hand, the CBI took a stand that the petitioner was an associate of the co-accused, on the other hand, it also took a stand that the complicity of the petitioner in the commission of the offence was not certain.

The Court observed that the petitioner was not served Section 41A CrPC notice, but rather Section 160 CrPC notice which is issued to the witnesses. It stated “Undisputedly, the notice under Section 41A CrPC is given to a person who is suspected to be involved in any cognizable offence. In contrast, notice under Section 160 CrPC is issued to witnesses to require their attendance before the police officer. Intriguingly, in the present case, no notice has been given to the petitioner under Section 41A CrPC, rather he was served with three (03) notices under Section 160 CrPC.”

It also noted that the allegations against the petitioner were solely based on the disclosure statement of the co-accused. It noted that the prosecution has not been able to show any evidence on record which would establish the involvement of the petitioner directly other than the disclosure statement.

In view of the contradictory stand taken by the CBI, the Court granted anticipatory bail to the petitioner.

“Having regard to aforesaid circumstances; the contradictory stand taken by the respondent/CBI; issuance of notices under Section 160 CrPC to the petitioner and non-issuance of any notice under Section 41A CrPC to the petitioner till date, this Court deems it appropriate to grant protection from arrest of the petitioner in the present case.”

Counsel for Petitioner: Mr. Akshat Sharma, Mr. Siddharth Arora, Ms. Shalini Singh, Mr. Himanshu Bhandari and Mr. Prajanya Rathore, Advs

Counsel for Respondent: Mr. Ripudaman Bhardwaj, SPP with Mr. Kushagra Kumar, Mr. Abhinav Bhardwaj, Mr. Amit Kumar Rana and Mr. Himanshu Kaushik, Advs

Case title: KUNDAN KUMAR @ GORE vs. CBI (BAIL APPLN. 1497/2024)