Non-Confession Of Accused Doesn't Amount To Non-Cooperation, Accused Must Be Released Forthwith If Arrest Doesn’t Satisfy Section 41 CrPC: Bombay High Court

A division bench of Justice Revati Mohite Dere and Justice Prithviraj Chavan further sought accountability from judicial officers remanding accused and ordering their detention after arrest.

"It is incumbent on the judicial officer authorising detention under Section 167 Cr.P.C, to be first satisfied that the arrest made is legal and in accordance with law and that all the constitutional rights of the person arrested, are satisfied. The same is not an empty formality. If the arrest effected, does not satisfy the requirements of Section 41 of Cr.P.C, the concerned court is duty bound not to authorise further detention of the accused and release the accused forthwith," said the court.

The bench further said that when an accused is arrested and produced before the concerned court, it is the duty of the judge to consider whether specific reasons have been recorded for arrest, and if so, prima facie, whether those reasons are relevant and whether a reasonable conclusion could at all, be reached by the officer that one or the other conditions in Section 41(1)(b)(ii)(a) to (e) are attracted.

The court said the arrest memo in Kochhars' case just cited non-cooperation, which is contrary to the record. “Nothing specific has been noted/set-out therein, as mandated by Section 41(1)(b) (ii) (a) to (e) of the CrPC. 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 second ground for arresting the petitioners for 'not disclosing true and correct facts’ was also rejected.

“[It] cannot be a reason, inasmuch as, the right against self-incrimination is provided for in Article 20(3) of the Constitution. It is is a well settled position in view of the Constitution Bench decision in Selvi vs. State of Karnataka," said the court.

The bench said that Article 20(3) is an essential safeguard in criminal cases and is meant to be a vital safeguard against torture and other coercive methods used by investigating agencies. 

It held that "merely because an accused does not confess, it cannot be said that the accused have not co-operated with the investigation."

"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)," the bench added

SECTION 41 of the CrPC.

Regarding the general applicability of section 41 of the CrPC, the court said that for a cognizable offence, an arrest is not mandatory and the onus lies with the officer who seeks to arrest.

“For effecting arrest, the officer must be satisfied that a person has committed a cognizable offence, punishable with imprisonment for a term which may be less than seven years or which may extend to the said period with or without fine, and that there is a necessity for an arrest.”

The reasons for arrest include preventing a person from an offence in the future, proper investigation, prevent a person from causing the evidence of the offence to disappear or tampering, threat to witnesses, etc, the court noted.

"It is incumbent upon the police not only to record reasons for arrest in writing, but, even in cases, where the police choose not to arrest. It is also incumbent on courts to satisfy themselves that there is due compliance of Section 41 and 41-A, failing which, the same will enure to the benefit of the person suspected of the offence, entitling the person to be released on bail," said the bench.

Reason To Believe, 'Satisfaction Qua An Arrest'

Observing that the arrest may be authorised only if the concerned officer has `reason to believe’ and there is `satisfaction qua an arrest’ that the person has committed an offence, the court said the belief must be in good faith and not casual or as an ipse dixit or a pretence or on mere suspicion.

"It is always open for a court to examine whether the reasons for the formation of the belief have a rational connection with the formation of the belief. There must be a direct nexus or live link between the material before the officer and the formation of his belief. Thus, there must be a rational connection between the two. We may note, that ‘reason to belief ’ must be based on credible material and no decision to arrest can be recorded on fancy or whimsical grounds," said the bench.

The court further said that it is evident from Arnesh Kumar  and Satender Kumar Antil that both the elements, “reason to believe” and “satisfaction for an arrest”, as mandated in Section 41(1)(b)(i) and Section 41(1)(b) (ii) have to be read together and as such recorded by the concerned officer whilst arresting an accused.

"The object being to ensure that officers do not arrest the accused unnecessarily and the Magistrates do not authorise detention casually and mechanically. The Apex Court has issued directions in the said judgments to the investigating agencies to check arbitrary arrests of persons. The direction further stipulates that failure to comply with the directions would render the officer liable for departmental action, apart from contempt of court. As per the direction, even the Magistrate concerned, shall be liable for departmental action by the appropriate High Court, for authorising detention without recording reasons," it added.

Case No: Chanda Deepak Kochhar Vs CBI [CRIMINAL WRIT PETITION (STAMP) NO. 22494 OF 2022]

Citation: 2023 LiveLaw (Bom) 15

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