Can't Arrest Accused On Whims And Fancies, CBI's Grounds Of Arrest 'Without Any Substance': Bombay High Court In Venugopal Dhoot's Bail Order

A division bench of Justice Revati Mohite Dere and Justice Prithviraj Chavan cited the non-compliance of Section 41(1)(b)(ii) of the CrPC, while granting relief to Dhoot.

“The Officer cannot arrest the accused at his whims and fancies … The onus of recording satisfaction, as already stated, not only lies on the Investigating Officer but even on the remanding Judge.”

Illegal Arrest

The court noted that the reasons cited in Dhoot’s arrest memo mentioned that his statements were inconsistent before the CBI, kept changing his versions and hasn’t cooperated with the IO in disclosing true facts.

The arrest memo is sans particulars of how the statements are inconsistent or how Dhoot failed to cooperate as he had already attended CBI’s office but couldn’t be confronted due to absence of other accused, it said. “The ground of arrest is quite casual and without any substance, which does not justify the mandate of Section 41(1)(b)(ii) from (a) to (e) of the Cr.P.C”

According to the guidelines of Arnesh Kumar and Satender Kumar Antil interpreted by the SC, elements of “reason to believe” and “satisfaction for an arrest” as mandated in Section 41 of the CrPC have to be read together and recorded by the concerned Officer while arresting an accused, said the court.

“Merely by mentioning in the arrest memo that the petitioner has been inconsistent in his statements before the Investigating Officer and has kept on changing his versions and as such, has not co-operated with the investigation in disclosing full and true facts, is not sufficient and the same cannot be a ground of arrest as it is unacceptable and contrary to the mandate of Section 41(1)(b)(i)&(ii) from (a) to (e) of the CrPC," it added.

Duty of the Judge

Regarding the remand orders dated 26, 28 and 29 December, 2022, the court noted that the presiding officer simply observed that he has perused the case diary and found that the offence is of serious nature.

Surprisingly, the judge rejected objections raised by Dhoot’s advocate of illegal arrest, the bench noted.

“Merely stating in the order that there is due compliance of Section 41 to 41A of the Cr.P.C. is not sufficient in view of the guidelines of Arnesh Kumar (supra) and Satender Kuamar Antil (supra). It is not an empty formality.”

The bench said it is clear that the court hadn’t made an effort to scrutinize the remand application or the case diary.

Another reason cited for extension of custody was to confront the accused with each other.

“There is no satisfactory answer from the Investigating Agency as to why for a period of 3 years, the Investigating Agency has neither confronted all the accused before one another or demonstrated the progress of the investigation by placing the case diary before the remanding Court. Non-compliance of Section 41 and 41A of the Cr.P.C. is, therefore, apparent,” the bench finally observed.

The Case

The CBI began investigating the accused in January 2018 after reports that Videocon's Dhoot paid a firm - he had allegedly set up with Deepak and two relatives, six months after his firm got a Rs 3,250 crore loan from ICICI Bank in 2012.

The irregularities were with regard to the grant of six high-value loans worth around Rs 1,575 crore to five firms of the Videocon Group between June 2009 and October 2011. The loans were granted in contravention of the rules and policy of sanctioning committee, the agency has alleged.

These loans were later termed as non-performing assets resulting in wrongful loss to ICICI bank and wrongful gain to the borrowers and accused persons, the CBI said. The total misappropriation is to the tune of Rs.1,730 crore as of April 26, 2012, according to the agency.

Venugopal Nandlal Dhoot Vs CBI [CRIMINAL WRIT PETITION NO. 300 OF 2023]

Citation: 2023 LiveLaw (Bom) 39

Appearances – Senior Advocate Raja Thakare for CBI

Advocates Sandeep Ladda and Viral Babar for Dhoot

Click Here To Read/Download Judgement