The court held that non-compliance with statutory arrest procedures under S.41 and S.41A of the CrPC renders an arrest illegal, entitling the accused to bail.

1. By these petitions, preferred under Art.226 of the Constitution of India and under S.482 of the Code of Criminal Procedure ('CrPC'), the petitioners, who are husband and wife, seek;
(i) quashing of the FIR, being No. RCBDI / 2019 / E / 0001 dated 22.01.2019, registered under S.120B and S.420 of the Penal Code, 1860 ('IPC') and S.7, S.13(2) r/w 13(1)(d) of the Prevention of Corruption Act ('PC Act');
(ii) quashing of their illegal arrest being violative of S.41 and S.41 - A of CrPC; and
(iii) quashing of the remand orders dated 24.12.2022 and 26.12.2022 passed by the learned Special CBI Judge, Mumbai.

2. By way of interim relief, the petitioners seek their release from custody pending the hearing and final disposal of the petitions.

3. The petitions, as agreed between the parties, are heard only for the limited purpose for considering whether the arrest of the petitioners was illegal i.e. contrary to the constitutional mandate and statutory provisions and consequently, whether the petitioners are entitled to be released on interim bail.

4. CRIMINAL WRIT PETITION / STAMP / 22494/2022
Mr. Amit Desai, learned senior counsel appearing for the petitioner - Chanda Kochhar submits;
(i) that the respondent No. 1 - CBI has, with blatant disregard to the rule of law, illegally and arbitrarily arrested the petitioner in clear contravention of the constitutional mandate and the provisions of Cr. P.C., pertaining to arrest;
(ii) that there was no occasion whatsoever to arrest the petitioner, inasmuch as, the petitioner had cooperated with the CBI throughout, right from the time the Preliminary Enquiry ('PE') was registered by the CBI till she was arrested. Learned senior counsel pointed to the number of times, the petitioner appeared before the CBI, and the documents submitted by her to the CBI;
(iii) that the petitioner had appeared before the Directorate of Enforcement ('ED'), after the ED registered offences under S.3 and S.4 of the Prevention of Money - Laundering Act ('PMLA Act') on 31.01.2019 against her and others and that the petitioner had co - operated with the investigation conducted by the ED;
(iv) that even in the adjudicating proceeding before the PMLA Authority, the petitioner had appeared and participated. He submitted that the Adjudicating Authority had after hearing the parties lifted the provisional attachment order passed by ED, vide order dated 06.11.2020;
(v) that throughout, i.e. right from the registration of the PE by respondent No. 1, registration of FIR by ED, till date, it is the petitioner's case, that she had no knowledge regarding her husband Deepak Kochhar's transactions;
(vi) that the respondent No. 1 - CBI by arresting the petitioner, had contravened the constitutional mandate and statutory rights granted to the petitioner. Learned senior counsel submits that there has been a clear breach of the mandate of S.41 and S.41 - A CrPC., inasmuch as, the reasons for arrest have not been spelt out in the arrest memo and that arrest cannot be at the ipse dixit or at the whims and fancies of an officer, as done in the present case;
(vii) that the provisions of the CrPC have not been complied with, asmuch as, there was no lady officer, as mandated, at the time of her arrest, as is evident from the arrest memo. Learned senior counsel submits that although a lady officer was present at the time of personal search of the petitioner, there is no endorsement that a lady officer was present at the time of petitioner's arrest;
(viii) that there is no previous approval as required under the PC Act;
(ix) that the remanding court had failed in its duty to consider that there was non - compliance of S.41 and S.41 - A CrPC and the ratio of the judgments of the Apex Court on this aspect, in particular, the judgment in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 and Satender Kumar Antil v. CBI (2022) 10 SCC 51

5. Learned senior counsel, in support of his submissions, relied on the several judgments, in particular, the following judgment