Procedure to arrest an accused who is already in judicial custody in another case

2024 INSC 687
1  P a g e
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 3816 / 2024
(Arising out of Special Leave Petition (Crl.) No. 11023 / 2024)
Arvind Kejriwal .Appellant(s)
versus
Central Bureau of Investigation .Respondent(s)
WITH
Criminal Appeal No. 3817 / 2024
(Arising out of Special Leave Petition (Crl.) No. 10991 / 2024)
JUDGEMENT
SURYA KANT, J.

Page 11

A. Whether the procedure undertaken in arresting the Appellant was illegal? 16. The primary basis for the Appellant's challenge rests on the contention that the procedure for arrest, as outlined under Sections 41(1)(b)(ii) and 41A of the CrPC, was not complied with. For the purpose of analysing the legality of the Appellant’s arrest, there are two key aspects which we propose to examine separately, namely: (i) whether the issuance of a notice under Section 41A of the CrPC was duly complied with, in the context of the present factual scenario; and (ii) whether Section 12 | P a g e 41(1)(b)(ii) of the CrPC is applicable in the facts and circumstances of this case. i. Compliance with Section 41A of the CrPC 17. Section 41A of the CrPC pertains to the issuance of a notice by a police officer to an individual when their arrest is not warranted under Section 41(1) of the CrPC, but their presence is still required before the investigating authority. Issuance of a notice under Section 41A(1) therefore would be imminent, when there is a complaint made, credible information received or there is a reasonable suspicion of the individual having committed a cognizable offence. Clause (2) of Section 41A thereafter, demands that an individual to whom such a notice has been issued, complies with the same. Section 41A (3) bears out that an individual who complies and continues to comply with such notice is not to be arrested in respect of the offence mentioned, unless the police officer, for reasons to be recorded, deems it necessary to arrest them. Finally, Section 41A (4) stipulates that if an individual fails to comply with the notice or refuses to identify themself, the police may arrest such an individual for the offence recorded in the notice, subject to any orders passed by a competent court. 18. Given the lucid nature of the language of the provision, it is crucial to examine the circumstances surrounding the Appellant’s arrest in order to gauge whether there was due compliance with the procedural safeguards enshrined within Section 41A. In the present context, since the Appellant was already in judicial custody at the relevant time in the 13 | P a g e ED case, the CBI filed an application on 24.06.2024 before the Trial Court under Section 41A of the CrPC, inter alia seeking to interrogate and examine him. Such examination was allegedly necessitated by new facts and evidence uncovered by the CBI upon further investigation. The CBI, vide this application, outlined the reasons prompting such examination, including the purported irregularities in the framing and implementation of the Excise Policy, and its manipulation to facilitate the monopolization and cartelization of wholesale and retail liquor trade in India. 19. The application also alleged that, upon further investigation, statements from several witnesses, incriminating documents and messages exchanged between the accused persons named in the chargesheets, revealed that the Appellant was a critical component in the criminal conspiracy related to the Excise Policy. It was claimed that the Appellant, in connivance with the other accused persons, engaged in tweaking the policy to enhance the profit margin of wholesalers from 5% to 12%, resulting in significant windfall gains. These gains were ultimately alleged to have been utilised by the Appellant’s political party towards election related expenses, during the 2021-22 Goa Assembly elections. The application highlighted that the emergence of these new facts, pointing toward the Appellant’s complicity, required further examination, as there was reasonable suspicion of his involvement in the commission of the offence. Upon considering these reasons, the Trial Court, by its 14 | P a g e order dated 24.06.2024, allowed the CBI’s application seeking to interrogate the Appellant. 20. At this juncture, it is pertinent to first address the Appellant’s allegations regarding the CBI’s non-compliance with Section 41A of the CrPC, particularly concerning the issuance of notice or lack thereof. In this regard, it is crucial to draw reference to the language and intent of the provision, which aims to ensure an individual’s appearance through the issuance of a notice. The provision, however, does not outline any express procedure to be undertaken where the individual in question is already incarcerated. It is to be remembered that the Court is, in a way, the guardian of an undertrial, while he is in judicial custody. That being so, there could possibly be no other way to secure the Appellant’s physical presence for the purpose of further investigation, except to seek prior permission of the Trial Court for his interrogation. 21. In fact, given what was contended by the Appellant, it must be explicated that Section 41A does not envisage or mandate the issuance of a notice to an individual already in judicial custody. As such a person is already under the court’s authority, any request to include them in an investigation in another case must be approved by the competent court. The CBI has thus followed the procedure which is contemplated in terms of the intent and purpose of Section 41A CrPC. 22. Contrarily, if the Appellant’s contention is taken to its logical conclusion, it could lead to detrimental consequences. For instance, serving a notice 15 | P a g e upon an undertrial in jail through the Jail Superintendent, without informing the court that placed them in judicial custody, would effectively enable the police to arrest such individuals in a new case without the court’s knowledge. This could result in a misuse of police authority and a violation of the Constitutional and procedural rights afforded to undertrials. Alternatively, when the court’s permission is sought, it ensures the application of judicial scrutiny to assess whether custodial interrogation is necessary and, if so, for what duration. 23. In the case in hand, the Trial Court’s approval of the CBI’s application to interrogate the Appellant should be viewed as satisfying the essential requirements of Section 41A, as the issuance of a formal notice through the jail authorities would have had an adverse impact on the rights of the Appellant. Thus, it is our considered view that the CBI complied with the procedure encompassed within the framework of Section 41A of the CrPC. 24. That being said, let us now address the specific contention pertaining to the alleged violation of Section 41A(3) of the CrPC. The provision elucidates, at the risk of reiteration, that an individual who complies with the notice issued under Section 41A should not be arrested, unless the police officer for reasons recorded, opines that arrest is necessary. The vital takeaway from this provision is that while compliance with the notice generally shields an individual from arrest, the police may still proceed with the arrest if they conclude that it is essential and provide duly recorded reasons for doing so. 16 | P a g e 25. In the present case, following the interrogation, the CBI moved another application to the Trial Court on 25.06.2024, seeking permission to arrest the Appellant. The CBI justified the arrest on the grounds that the Appellant had allegedly given evasive responses during questioning and that custodial interrogation was necessary to confront him with evidence and uncover a purported larger conspiracy involving the accused persons in the implementation of the excise policy. The Trial Court, after considering these reasons, allowed the CBI's application for the Appellant's arrest and issued production warrants on the same day. 26. In this respect, our analysis is confined to assessing whether Section 41A(3) was violated, thereby rendering the arrest per se illegal. First, it is trite law that there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of a Magistrate. Thus, there is no impediment in terms of arresting a person already in custody for the purposes of investigation, whether for the same offence or for an altogether different offence.3 The Appellant’s arrest by the CBI was thus entirely permissible, in light of the Trial Court’s order dated 25.06.2024. 27. Second, Section 41A(3) allows for arrest, provided the reasons are recorded, justifying the necessity of such a step, and the police officer is satisfied that the individual should be arrested. In this context, we have already noted that the CBI, in their application dated 25.06.2024, clearly recorded the reasons as to why they deemed the Appellant's arrest necessary. These reasons were also summarized in the arrest memo 3 Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141. 17 | P a g e dated 26.06.2024. It is important to clarify that our current analysis is limited to verifying whether the CBI followed the correct procedure, including the recording of sufficient reasons. This issue would not detain us further, as the reasons as to why the Appellant’s arrest was necessitated are discernible from the CBI’s application dated 25.06.2024. 28. Third, Section 41A(1), when read with Section 41A(3) CrPC, does not impose an absolute prohibition on the arrest of an individual against whom there exists reasonable suspicion of having committed a cognizable offence punishable with imprisonment up to seven years. This is evident from the language of the provision itself. Section 41A(3) explicitly states that an arrest is permissible if the police officer believes it to be necessary and duly records the reasons for such arrest. This provision thus essentially carves out an exception to the general rule under Section 41A, which mandates that an individual whose appearance is required should not be arrested under Section 41(1) of the CrPC. 29. Therefore, in view of these considerations, we do not find any merit in the Appellant's contention that the CBI failed to comply with Section 41A CrPC, in its true letter and spirit. ii. Whether Section 41(1)(b)(ii) of the CrPC is applicable? 30. At the outset, it is imperative to clarify that our analysis will be restricted to the procedure outlined under Section 41(1)(b)(ii) of the CrPC. This is 18 | P a g e because Section 41(1), in its entirety, addresses multiple situations and complexities regarding the procedure for arrest, which may not be directly applicable to the intricacies of the present case. 31. In this vein, the language of Section 41(1)(b) postulates as follows: “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— ….. (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 officer 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 (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 reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. ……” 19 | P a g e 32. Section 41(1)(b)(ii) of the CrPC clearly stipulates that an arrest under this provision can be made based on a complaint or credible information that an individual has committed a cognizable offence punishable with imprisonment up to seven years, with or without a fine. However, such an arrest must be conducted subject to the satisfaction of specific conditions outlined in subsections (a) to (e). The rigors of Section 41(1)(b)(ii) have been extensively examined by this Court in Arnesh Kumar (supra), where it was observed that: “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. 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. 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 office 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 20 | P a g e 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 of Cr.PC.” 33. Given this annotation, while there exists no doubt that the submissions made by the Appellant in regard to the precepts of Section 41(1)(b) are sound, the provision is inapplicable to the vicissitudes of the present factual matrix. Here is a case where the court upon application of judicial mind accorded its approval to the Appellant’s arrest for which necessary warrant was issued. There was thus no occasion for the arresting police officer to form an opinion regarding the existence of valid reasons of arrest. The competent court having undertaken such a task, the police officer cannot be expected to sit over the order of the court. 34. Still further, Section 41(1) opens with the expression that ‘any police officer may arrest without an order from a Magistrate or without a warrant’. It necessarily means that where a Magistrate has issued an order, the police officer stands absolved form his statutory obligation of forming an opinion. Consequently, it becomes apparent that the variables and conditions ensconced in Section 41(1)(b)(ii) of the CrPC would cease to apply in the present context, given the order granted by the Trial Court prior. 21 | P a g e 35. Lastly, we are inclined to agree with the explanation given by the Learned ASG that the reference to Section 41(2) of the CrPC in the High Court's judgment appears to have been included inadvertently and is a typographical error. Both parties, during their submissions, have rightly clarified that Section 41(2) which pertains to the procedure of arrest in non-cognizable offences, does not apply to the facts and circumstances here. 36. Having considered the CBI's compliance with Section 41A of the CrPC and the inapplicability of Section 41(1)(b)(ii) of the CrPC, we are thus of the view that the Appellant’s arrest does not suffer with any procedural infirmity. Consequently, the plea regarding non-compliance of these provisions, merits rejection. Ordered accordingly