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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. KATHAWALLA, BHARTI H. DANGRE, JJ.
Kavita Manikikar, w/o Ravikiran Mankikar - Petitioner
Vs.
Central Bureau of Investigation BS & FC, through its Standing Counsel of Bombay, Mumbai & Ors. - Respondents
Writ Petition No. 1142 of 2018
Decided On : 10-05-2018
Criminal Procedure Code,1973 - Section 46 (4) - Prevention of Corruption Act, 1988 - Section 13 (1) (d) - Amendment Act, 2005 - Section 46 (4) - Investigation - FIR - Petitioner was called to attend investigation and it specific case of petitioner that she cooperated with investigating agency- As a part thereof she was called in office of CBI and at she came to be arrested- It specific case of petitioner that said arrest is in violation of provisions contained in Code of Criminal Procedure petitioner was thereafter produced before Special Judge Greater Bombay on -wherein respondent-CBI sought her custody for a period - petitioner invited attention of learned Special Judge to alleged illegal arrest in contravention to provisions of law- However according to petitioner an order of remand was passed thereby remanding petitioner to custody of respondent-CBI for a period - Being aggrieved by said action of respondent-CBI as well as order passed by Special Judge petitioner has approached this Court –Held, Court in has clearly held consequence for non observance of mandate prescribed under Section Code and squarely covers facts of present case divergent views relied upon by counsel for CBI in judgments in Rakesh Chand Vs- State of NCT of Delhi and Smt- Sandhya Upmanyu Vs- Station House Officer ACB & Ors supra where it has been held that exigency of situation will have to be taken into account before it can be held that arrest of a woman after sunset is in contravention of Section Code- However in light of clear pronouncement Country can not be denied to a convict an accused in custody and surely not to a suspect who is sought to be converted to an accused on investigation and then from an accused to a convict on trial- It is an obligation upon State to ensure that there is no infringement of indefeasible right of citizen to life and liberty which he can not be deprived of without following procedure established by law- Code of Criminal Procedure which outlines manner and to extent to which a person can be denuded of his liberty hence needs a strict compliance- Any deviation from prescribed procedure in matter of arrest can therefore be not countenanced and is liable to be declared as illegal- In such circumstances action of respondent CBI in arresting petitioner is in violation and utter disregard to Section Code of Criminal Procedure and hence declared as illegal- Needless to say that all consequent actions more particularly that of CBI remand of petitioner by order Special Judge are of no legal consequences null and void respondent-CBI who are responsible for flagrant violation of said provisions are liable for disciplinary proceedings- competent authorities are at liberty to initiate such an action against erring officers so that officers from such a responsible agency shall deter from committing such an overtact of violation of statutory provisions which aim at ensuring an individuals life and liberty and depriving same in accordance with procedure prescribed by law – Order accordingly
Bharti H. Dangre, J.
1. Rule. Rule returnable forthwith. Heard by consent of the parties. The petitioner has approached this Court seeking a declaration that her arrest dated 20.02.2018 by CBI. be declared as illegal and contrary to Section 46 (4) of the Code of Criminal Procedure The petitioner has also prayed for issuance of a writ in the nature of mandamus for setting aside the order dated 21.02.2018 passed by Special Judge, Greater Bombay, by which the petitioner has been remanded to the Central Bureau of Investigation Custody for 14 days. The petitioner has also prayed for a direction to initiate an inquiry against the officers who have arrested the petitioner in contravention of the statutory provisions.
2. In order to deal with the reliefs sought for in the present petition, it would be necessary to refer to the brief chronology of facts and events leading to the filing of the present petition.
An FIR bearing No. RC RCBSM2018E0001, was registered by the respondent-Central Bureau of Investigation (hereinafter referred to as “CBI”), BS&FC, Mumbai on a written complaint of the Deputy General Manager, Zonal Office, Mumbai, Punjab National Bank under Section 120-B read with 420 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. On registration of the said FIR, the petitioner was called to attend the investigation and it is the specific case of the petitioner that she cooperated with the investigating agency. As a part thereof, she was called in the office of CBI on 20.02.2018 and at about 8.00 p.m. she came to be arrested. It is the specific case of the petitioner that the said arrest is in violation of the provisions contained in Section 46 (4) of the Code of Criminal Procedure. The petitioner was thereafter produced before the learned Special Judge, Greater Bombay, on 21.02.2018 wherein the respondent-CBI sought her custody for a period of 14 days. The petitioner invited the attention of the learned Special Judge to the alleged illegal arrest in contravention to the provisions of the law. However, according to the petitioner, an order of remand was passed thereby remanding the petitioner to the custody of the respondent-CBI for a period of 14 days. Being aggrieved by the said action of the respondent-CBI as well as the order passed by the Special Judge, the petitioner has approached this Court.
3. In order to contest the claim of the petitioner, the CBI has filed an affidavit-in-reply and in the said affidavit, it is stated that a complaint was registered by the Deputy General Manager, Punjab National Bank, Zonal Office, Mumbai on 31.01.2018 with the CBI, BS&FC, Mumbai categorically disclosing that the petitioner was working as an Executive Assistant with Mr. Niram Modi and she was an authorised signatory of M/s. Diamonds R US, M/s. Solar Exports and M/s. Stellar Diamond, which had obtained fraudulent Letters of Understanding (LOUs) from the Punjab national Bank, Mid Corporate Branch, Brady House, Mumbai for raising various credits. In the complaint, it was disclosed that Nirav Modi along with other partners of M/s Diamonds R US, M/s. Solar Exports and M/s. Stellar Diamond, had entered intro criminal conspiracy with Gokulnath Shetty, the then Deputy Manager of Punjab National Bank, Mid Corporate Branch, Mumbai and other unknown persons with an object to cheat the Punjab National Bank. It was alleged in the complaint that in furtherance of the criminal conspiracy, the accused public servants abused their official positions to cause pecuniary advantage to M/s. Diamonds R US, M/s. Solar Exports and M/s. Stellar Diamond by issuing fraudulent Letters of Undertaking (LOUs) without following the prescribed procedure. As a conspiracy, the accused-public servants transmitted the SWIFT instructions to the overseas branches of Indian banks for raising Buyer's Credit for payment of import bills, consequent to which, such overseas branches of the Indian banks credit
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