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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1142/2018

Kavita Manikikar of Mumbai

w/o Ravikiran Mankikar,
r/o Jer Villa, 3rd Road, TPS­III,
Santacruz (E), Mumbai. .....PETITIONER

...V E R S U S...

1. Central Bureau of Investigation BS & FC,

through its Standing Counsel of Bombay,
Mumbai.

2. State of Maharashtra
through its Standing Counsel,
Hon'ble High Court of Bombay,
Mumbai. ...RESPONDENTS

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Mr. Vijay Aggarwal i/b. Ashul Aggarwal and Yashwardhan Tiwari,
Counsel for the petitioner.
Ms.Ameeta Kuttikrushnan, , Counsel for the respondent no.1.
Mr.Rajan Salvi, A.P.P. for the respondent no.2.
Ms.Sharda Raut, Superintendent of Police, present in person.
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CORAM: S. J. KATHAWALLA AND

SMT. BHARTI H. DANGRE, JJ.
DATED : MAY 10, 2018

JUDGMENT (Per : Smt. Bharti H. Dangre, J.) :

1. Rule. Rule returnable forthwith. Heard by consent of the

parties. The petitioner has approached this Court seeking a

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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 respondent­Central 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 120­B 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

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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 respondent­CBI 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 respondent­CBI for a period of 14 days.

Being aggrieved by the said action of the respondent­CBI 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 affidavit­in­reply 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

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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 credited the NOSTRO Bank accounts of Punjab

National Bank abroad. The Buyer's Credit so raised, in many

cases, was not used for the said purpose and was siphoned off. By

this activity, Punjab National Bank was cheated to the tune of

Rs.280,70,12,293.98/­ (Rs. 280.70 Crores approximately)

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The complaint alleged that the applicant is one of the co­

conspirators in the massive fraud wherein she fraudulently and

dishonestly signed the applications for issuance of large fraudulent

LOUs, which were ultimately issued by co­accused Gokulnath

Shetty and Manoj Hanumant Kharat of the Punjab National Bank.

4. The affidavit emphasizes the involvement of the

petitioner in the crime and it is stated in the affidavit that she was

called on 20.02.2018 at 15:15 hrs. in the CBI, BS&FC Office,

Mumbai for the purpose of investigation. It is specifically stated

that she was accompanied with her husband and during

investigation she was not cooperating and there was a strong

suspicion that she may abscond if not arrested and therefore in

order to unravel the large conspiracy in this fraud, she was placed

under arrest formally and the arrest was carried out at 20:00 hrs.

by preparing a detailed Arrest­cum­Personal Search Memo. It is

specifically denied in the affidavit that the arrest is ex facie illegal.

As regards the impugned order passed by the learned Special

Judge, it is stated in the affidavit that the Special Judge delved

into the provisions of Section 46(4) of the Code of Criminal

Procedure and had concluded that the petitioner was present in

the office of the CBI along with her husband and the Special Court

did not notice any breach of Section 46 (4) of the Code of Criminal

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Procedure.

5. We have heard Mr. Yashwardhan Tiwari, Advocate

appearing for the petitioner, Ms.Ameeta Kuttikrushnan, appearing

on behalf of the respondent no.1­CBI as well as the learned

Additional Public Prosecutor for the respondent no.2­State of

Maharashtra.

6. The learned counsel for the petitioner Adv Shri Tiwari

has invited our attention to the scheme as contained in Chapter V

of the Code of Criminal Procedure which deals with ‘Arrest of

persons’ and the said Chapter enumerates contingencies when a

Police Officer can effect arrest and provides for the procedure to be

followed by him. He would submit that the Section 46 specifically

provide for ‘Arrest how made’ and it sets out the manner in which

a person can be ‘arrested’ which includes the safeguards to be

adhered to while arresting a woman. He would further submit that

sub­section (4) of Section 46 came to be inserted by an Act XXV of

2005, which came into effect from 23.06.2006. According to the

learned counsel, the said provision is salutary one which provides

safeguard against the arrest of a woman after sunset and before

sunrise and as per the learned counsel, the said safeguards have to

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be strictly adhered to. He would submit that the petitioner was

cooperating with the investigation and whenever she was

summoned by the CBI for the purpose of interrogation, she had

visited the office of the CBI on her own. It is the specific

submission of the learned Counsel that on the particular day i.e.

on 20.02.2018, she herself attended the office of the investigating

officer and there was no exigency of resorting to the extreme step

of arrest after sunset. He would submit that she was ready and

willing to attend the office of the CBI on the immediate next day

and as such there was no compelling circumstance for effecting the

arrest of the petitioner after sunset in gross violation of the said

sub­section (4). According to him, time of arrest i.e. 20:00 hrs has

been categorically admitted by the CBI in their affidavit­in­reply.

According to him, the said time of arrest was beyond the

permissible time limits as per Section 46(4) of the Code. He

would also invite attention of this Court to Section 60­A which was

inserted in the Code by Amendment Act, 2008 and he would

emphasis that as per the said newly added Section, every arrest

has to be in conformity with the provisions of the Code or any

other law for the time being in force. In turn, he would submit

that non adherence to the provisions contained in the said chapter

would render the said arrest illegal. He would also invite attention

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of this Court to the CBI Manual and specifically Section 12 of the

said Manual to submit that the CBI is bound by the said Manual

which in turn makes it imperative for them to follow the procedure

prescribed by law.

He would invite attention of this Court to the Division

Bench judgment of this Court in the case of Christian Community

Welfare Council of India and anr. Vs. Government of

Maharashtra and anr.; reported in 1995 CRI L. J. 4223, and he

would submit that in the year 1995 itself, it was this Court, which

had issued guidelines in relation to the matters relating to the

custodial evaluation by police officer and arrest of a female person

in the State. He would submit that the directives were issued by

this Court to the State Government to issue instructions

immediately and in unequivocal terms that no female person shall

be detained or arrested without presence of a lady constable and

in no case after sunset and before sunrise. He would also place

reliance on the Division Bench judgment of this Court in Mrs.

Bharti S. Khandhar Vs. Maruti Govind Jadhav, PSI and Ors.;

reported in 2013 CRI. L. J. 677, and would submit that in similar

circumstances where the woman was apprehended by police

officer at 05:30 p.m. and made to stay in the Police Station but

was shown to be arrested at 08:45 p.m. in execution of the Non

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Bailable Warrant, without following the procedure prescribed

under Section 46 (4) of the Code of Criminal Procedure, the

Division Bench of this Court had declared her arrest and detention

to be illegal.

7. Mr. Tiwari, learned counsel for the petitioner, would

submit that it is the settled position of law that if initial action is

not in consonance with law, all the subsequent and consequential

proceedings would fall through for the reason that illegality strikes

at the root of the order. He would place reliance on the judgment

of the Hon'ble Apex Court to submit that if an order is a nullity,

the consequential action/proceeding which is fallout of the said

order must also meet with the same fate. By relying on the said

judgments, the learned counsel would submit that since the arrest

itself is illegal, the subsequent remand order passed by the Special

Court, which fails to take into consideration the compliance of the

statutory provisions and safeguards contained in Section 46 (4) of

the Code of Criminal Procedure for arresting a woman is totally

untenable. He would submit that till date, the petitioner has not

applied for bail since, according to him, the arrest of the petitioner

itself is illegal and he is approaching this Court seeking a

declaration to that effect. In nutshell, his submission is that since

the action of the respondent­CBI in arresting the petitioner is bad

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at its inception being in utter violation of the statutory provisions,

it cannot be legalized at later stage by the order of Special Judge

and therefore the action of the respondent in arresting the

petitioner along with the order passed by the Special Judge

granting the remand to her to the custody of the CBI for a period

of 14 days; both are liable to be quashed and set aside.

8. As against the said arguments, Ms. Ameeta

Kuttikrushnan, learned counsel appearing on behalf of the CBI

would invite attention of this Court to the affidavit­in­reply and

would submit that the nature of accusations against the petitioner

are grave in nature. The learned counsel would submit that the

investigation itself reveals that she is authorised signatory in the 3

firms of Nirav Modi Group mentioned in the FIR namely; M/s.

Diamonds R US, M/s Solar Exports and M/s Stellar Diamond. The

learned counsel would submit that she is conversant with the

business being carried out by the said firms and she was holding

the post of Executive Assistant of Nirav Modi and it was she who

intentionally and fraudulently approved the applications in respect

of many of the LOUs, to the tune of approximately Rs.6498.20

Crores, which came to be issued by public servant of the Punjab

National Bank in conspiracy with the present petitioner. It is

specifically submitted that she is in knowhow of the operations but

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she did not divulge the details thereof during investigation.

According to the CBI, she was one of the most resourceful person

who would assist the CBI to track the real culprit.

The learned counsel would submit that she was not

revealing the truth and there was a serious apprehension that she

would abscond and therefore it was decided to arrest her and seek

her Police Custody Remand since she was able to throw light on

the nature of transactions which had led to the large conspiracy.

The learned counsel would submit that though she was called for

the purpose of investigation, she attended the office of the CBI at

15:15 hrs. she was formally arrested at 20:00 hrs on executing a

detailed Arrest­cum­Personal Search Memo. The learned counsel

would submit that it was not a case where she was called after

sunset and then arrested but it was a case where she was already

in the office of the CBI for investigation well before sunset along

with her husband. There were other officials, lady staff members,

inspectors, etc. present in the office of CBI. It is specifically

submitted that there was no ill treatment meted out to her. The

learned counsel would also submit that she was produced before

the Special Judge on 21.02.2018 before completion of period of 24

hours with a prayer to obtain remand for 14 days, which came to

be accordingly granted. As regards the allegation of violation of

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provisions of Section 46 (4) of the Cr.P.C., the learned Counsel

would submit that the petitioner was present in the office of the

CBI along with her husband therefore there was no breach of

Section 46(4) of the Code.

The learned counsel for the respondent­CBI made an

attempt to draw a distinction between two terminologies namely;

“Arrest” and “Custody”. The learned counsel would submit that in

any case, the petitioner was in custody of the CBI since 15:15 hrs.

and only the formality of Arrest­cum­Personal Search Memo was

done at 20:00 hrs. She would place reliance on the judgment of

the Supreme Court in State of Haryana and ors. Vs. Dinesh

Kumar; reported in (2008) 3 SCC 222, wherein the Hon'ble Apex

Court has dealt with the thin line of distinction between “Arrest”

and “Custody”. Reliance is also placed on the judgment of the

Delhi High Court in the case of Rakesh Chand Vs. State of NCT of

Delhi, and also judgment of the Rajasthan High Court in Smt.

Sandhya Upmanyu Vs. Station House Officer, ACB & Ors,;

reported in 2016 SCC OnLine Raj 6502.

The learned counsel would then submit that if a person

is confined or kept in police station and/or his movements are

restricted within the precincts of the police station, it would be

undoubtedly a case of arrest and in such a situation, since the

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petitioner was in custody of the CBI since 15:15 hrs., it cannot be

said that she was arrested after sunset. As regards the presence of

the female officers is concerned, our attention is invited to the

Arrest­cum­Personal Search Memo and it is submitted that it is

stated in the said memo that the personal search of the petitioner

was taken by Ms. Vaishali Ghorpade, PI, CBI, ACB, Mumbai and

according to the learned counsel, substantial compliance of the

provisions contained in the Code granting protection to the women

s accused, was done. She would submit that looking to the object

of Section 46(4) of the Code, it is imperative that the provisions

are to be followed so that woman accused is not put to harassment

or ill treatment is not meted out to her. In such circumstances, she

would pray for dismissal of the present writ petition considering

the nature of accusation against the present petitioner as found in

the complaint, which the CBI is investigating into.

9. We have perused writ petition and the affidavit­in­reply

in response to the petition and have also carefully considered the

submissions advanced by the learned counsel for the parties. It is

no doubt true that Chapter V of the Code of Criminal procedure

deals with the arrest of persons. Though the word “Arrest” has not

been defined in the Code, Section 46 provides as to how the arrest

is to be made. Section 46 (1) contemplates that in making an

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arrest, the police officer or other person making the same shall

actually touch or confine the body of the person to be arrested

unless there be a submission to the custody by word or action.

However, from 31.12.2009 a proviso is carved out of the said sub

section, which provides that where a woman is to be arrested, the

police officer shall not touch person of the woman for making her

arrest unless the police officer is female and unless the

circumstances indicate to the contrary, her submission to custody

on an oral intimation of arrest shall be presumed. Sub Section (4)

came to be inserted with effect from 23.06.2006. The said

provision came to be introduced by the Amendment Bill of 2004

which was approved by Parliament on 09.05.2005. The

recommendation of the Law Commission in its 135 th Report on

‘Women in custody’ made various recommendations which were

introduced by inserting sub­section (4) to Section 46. The report of

the Commission attended the concern of law to prevent

harassment and exploitation of women and to deal with the

women accused with honour and dignity, the first step that was

recommended to be incorporated in the form of Legislation was

that; no woman accused shall be arrested after sunset and before

sunrise. However, that was not to be considered as absolute

preposition and therefore a proviso was carved out where; in

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exceptional circumstances, if there is need to arrest a person who

happens to be a woman accused then she could be arrested by

obtaining prior permission being sought of the Judicial Magistrate

of the First Class within whose local jurisdiction the offence is

committed or arrest is to be made.

The said provision undoubtedly creates an embargo on

arrest of a woman who is an accused in an offence to be arrested

after sunset and before sunrise. However, in the backdrop of the

exceptional circumstances, it is permissible for a woman police

officer by making written report to obtain prior permission of the

Judicial Magistrate First Class and then effect arrest.

10. The Division Bench of this Court in the case of

Christian Community Welfare Council of India and anr. (supra),

prior to the amendment to the Code had given a deep

consideration to the matter regarding custodial violence and the

arrest of a female persons in the State. This Court directed the

constitution of committee to have an introspection of custodial

violence committed by the police in the State and to suggest

comprehensive measures. In the said judgment, the Court also

directed the State Government to issue instructions that no female

persons shall be detained or arrested without presence of lady

constable and in no case after sunset and before sunrise. The said

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direction came to be issued by the Division Bench of this Court

with an expectation that the State Government would rise to the

occasion by striking the balance between the life of a person in

police custody and the power of law enforcing agencies to bring

the criminals to book by making appropriate rules or providing

guidelines to the police personnels. With this object in mind, the

Court expected the State also to ensure safeguards regarding

before the arrest of women in the State. This Court further

directed the State to ensure that no lady or female person is

arrested without presence of lady constable and in no case, after

sunset and before sunrise and if there are already rules or

guidelines to that effect, these are to be strictly followed and

complied with.

Subsequent to this judgment the provisions for ensuring

protection of the women accused came to be incorporated in the

Code by Amendment Act, 2005 and it came into effect from

23.06.2006., with the same avowed purpose of subjecting to a

woman suspect/accused be vulnerable to the misdeeds from such

arrest effected after sunset.

11. In the backdrop of the said provisions in existence, the

respondent no.1­CBI is making an attempt to justify the said arrest

by relying on the exigency and the situation that had emerged. It

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is the specific case of the CBI that there was a strong suspicion that

the petitioner would abscond and in that contingency, it was

necessary to arrest her.

No doubt true, Section 46 (4) of the Code itself carves

out an exception incorporating the provision of obtaining written

permission from the Judicial Magistrate First Class. The said

procedure can be set into motion for dealing with such an

exigency. However, the CBI has failed to demonstrate any such

exercise being undertaken. Perusal of the Arrest­cum­Personal

Search Memo which is signed by D. Damodaran, Inspector of

Police, CBI, BS&FC, Mumbai dated 20.02.2018, which has been

placed on record as Annexure­C to the petition, would reveal that

the arrest is effected on 20:00 hrs. As against the column; Whether

any near relative or friend of the arrested person was intimated of

the arrest; it is stated that Mr. Ravikiran Mankikar, husband of the

petitioner was present along with her. The Arrest­cum­Personal

Search Memo contains a note to the following effect;

“(Personal search taken by Ms. Vaishali Ghorpade, PI,

CBI, ACB, Mumbai)”.

12. Except expressing that there was a strong suspicion of the

petitioner being absconding, no exigency has been pointed out in

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the affidavit justifying non­compliance of mandatory requirement

in sub­section (4) . In any case, if such an exigency were in

existence, recourse could have been sought to the exception carved

out in Section 46 (4) itself. However, none of this exercise has

been undertaken. Further, the arrest is not made by the female

Police Inspector and it can be seen that the police inspector

making arrest is D. Damodaran, Inspector of Police, CBI, BS&FC,

Mumbai. The presence of the other lady police official in the office

of the CBI at the time of effecting arrest or presence of her

husband is of no consequence.

13. The learned Special Judge who passed the order of

remand on 21.02.2018 while dealing with the submission of

contravention of Section 46(4) of the Code has recorded some

finding on perusal of the case diary. It is observed in the order by

the learned Special Judge as under:

“Ld SPP submitted that the IO has brought the case

diary. In regard accused no.1 he submitted that at the
time of arrest accused no.1 was in the office of CBI and
after completing remand proceeding in the court, IO
went to office. Husband of accused no.1 was present in
the office. Lady Inspector was present at the time of
arrest and thereafter formality arrest of accused was
completed.”

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The observation of the learned Special Judge, as regards

presence of the Lady Inspector at the time of arrest, however, did

not find any mention in the Arrest­cum­Personal Search Memo

dated 20.02.2018. The learned Special Judge has concluded that

since the petitioner was present in the office of the CBI along with

husband, there was no breach of Section 46 (4) of the Code. The

learned Judge has failed to take into consideration the mandate of

Section 46 (4) of the Code and has erred in making the

observation that there is no violation of provision of Section 46

(4). Section 60­A of the Code makes it imperative that no arrest

shall be made except in accordance with the provisions of this

Code. Resultantly, any arrest which is made in violation of

provisions contained in the Code shall be liable to be termed as not

in accordance with the Code and thus, illegal. Where a statute

mandates that no woman shall be arrested after sunset and before

sunrise and the arrest of a person when she is a woman has to be

made by police officer, who is a female, the provisions of the

statute cannot be simply ignored.

Perusal of the affidavit­in­reply filed by the CBI clearly

reveals that the petitioner was present in the office of CBI from

15:15 hrs. However, from the affidavit as well as Arrest­cum­

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Personal Search Memo, it is clear that the arrest came to be

effected at 20:00 hrs. Section 46(4) contemplates that while

making arrest, the police officer or the person making the same

shall actually touch or confine the body of the person to be

arrested and in case of a female, it shall be necessarily done by a

female police officer since there is apprehension that the male

police officer might touch the person of a woman while making

arrest. The contention of the learned counsel for the respondent­

CBI that she was already in custody and being confined to the

jurisdiction of the CBI, formal arrest being effected at 20:00 hrs.

would not vitiate the said arrest; do not appear to be correct

approach in the light of settled legal position.

14. Perusal of Section 46(4) would make it amply clear that

it mandates that no woman shall be arrested after sunset and

before sunrise, save in exceptional circumstances when prior

permission of Judicial Magistrate First Class in whose legal

jurisdiction the offence is committed or arrest is to be made. Thus,

it is clear that no woman shall be arrested beyond the prescribed

schedule of time and where in exceptional circumstances, by Lady

Police Officer by making a written report and obtaining permission

from the Judicial Magistrate First Class. Mandate of Sub­section

(4) of Section 46 is two fold. The said Section sets out that no

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woman be arrested after sunset and before sunrise and in the

exceptional circumstances, she may be so arrested on a Lady Police

Officer making a report and obtaining permission of the Judicial

Magistrate First Class for effecting such an arrest.

Admittedly, in this case, before effecting the arrest, no

such mandate was followed. The attempt on the part of the CBI to

demonstrate that the petitioner was in custody from 15:15 hrs., it

was only at 20:00 hrs. the Arrest­cum­Personal Search Memo came

to be singed. The said document appears to be wholly fallacious

as there is clear distinction between “Custody” and “Arrest” and

Section 46 deals with how the arrest is to be made and the

provisions contained in Section 46(4) are in relation to the arrest

only. The Legislature was conscious while it used the term as

“Arrest” as distinct from “Custody” and the safeguard which it

intended to be provide to a woman is in relation to “Arrest”. The

petitioner may have been in custody before the sunset, however,

she is arrested at 20:00 hrs. which is after sunset and therefore the

action of the CBI clearly falls within the prohibition imposed under

Sub Section (4) of Section 46 of the Code.

15. Reliance placed by the learned counsel for C.B.I on the

judgment of the Hon'ble Apex Court in State of Haryana and ors.

Vs. Dinesh Kumar, (supra), is of no assistance. The Hon'ble Apex

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Court, after making clear distinction between the expression

“Custody” and “Arrest” did not find favour with the view expressed

by the Full Bench of Madras High Court and made a reference to

its earlier judgment in the case of Niranjan Singh Vs. Prabhakar

Rajaram Kharate; reported in (1980) 2 SCC 559 and affirmed its

earlier view and observed thus:

“7. When is a person in custody, within the meaning of

Section 439 Cr. P.C.? When he is in duress either
because he is held by the investigating agency or other
police or allied authority or is under the control of the
court having been remanded by judicial order, or having
offered himself to the court's jurisdiction and submitted
to its orders by physical presence. No lexical dexterity
nor precedential profusion is needed to come to the
realistic conclusion that he who is under the control of
the court or is in the physical hold of an officer with
coercive power is in custody for the purpose of Section
439. This word is of elastic semantics but its core
meaning is that the law has taken control of the person.
The equivocatory quibblings and hide­and­seek niceties
sometimes heard in court that the police have taken a
man into informal custody but not arrested him, have
detained him for interrogation but not taken him into
formal custody and other like terminological dubieties
are unfair evasions of the straightforwardness of the
law. We need not dilate on this shady facet here because

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we are satisfied that the accused did physically submit

before the Sessions Judge and the jurisdiction to grant
bail thus arose.

8. Custody, in the context of Section 439, (we are not,

be it noted, dealing with anticipatory bail under Section
438) is physical control or an least physical presence of
the accused in court coupled with submission to the
jurisdiction and orders of the court.

9. He can be in custody not merely when the police

arrests him, produces him before a Magistrate and gets a
remand to judicial or other custody. He can, be stated to
be in judicial custody when he surrenders before the
court and submits to its directions.”

By referring to the said judgment, the Apex Court

observed that the interpretation of the terms “Arrest” and

“Custody” rendered by the Full Bench of the Madras High Court

may be relevant in the context of Section 107 and 108 of the

Customs Act which do not contemplate the immediate arrest of a

person being summoned in connection with an inquiry but only

contemplates surrendering to the custody of the Customs Officer

which would subsequently lead to arrest and detention. However,

the Apex Court made it clear in paragraph 27 of the said judgment

that the position is different as proceedings in the Courts are

concerned in relation to the inquiry into the offences under the

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Penal Code and other criminal enactments. In the latter set of

cases, in order to obtain the benefit of bail, an accused has to

surrender to the custody of the Court or the police authorities

before he can be granted the benefit thereunder. In paragraph 28,

the Apex Court observed thus:

“28. The aforesaid definition is similar in spirit to what

is incorporated in Section 46 of the Code of Criminal
Procedure. The concept was expanded by this Court in
State of U. P. vs. Deomen wherein it was inter alia
observed as follows: (AIR p.1131, para 12)

12. ...Section 46 of the Code of Criminal Procedure

does not contemplate any formality before a person can
be said to be taken in custody. Submission to the custody
by words of mouth or action by a person is sufficient. A
person directly giving a police officer by word of mouth
information which may be used as evidence against him
may be deemed to have submitted himself to the custody
of the Police Officer....”

16. In these circumstances, the said judgment which lays

down the preposition of law in the backdrop of the provisions of

the Customs Act is of no assistance to the CBI. On the contrary,

the Division Bench of this Court, while dealing with the similar

situation in the case of Mrs. Bharti S. Khandhar Vs. Maruti

Govind Jadhav, PSI and Ors. (supra) had an occasion to deal

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with the identical situation where the Division Bench was dealing

with a case where the petitioner was called to the Police Station at

evening hours and came to be arrested at 20:45 hrs. by the

respondent­PSI in presence of her sister and in absence of Lady

Police Constable. By relying upon the mandate contained in

Section 46(4), the Division Bench concluded that the action of the

respondent to take custody of the petitioner at 5:30 p.m. and

asking her to sit there in total disregard to the provisions of the

Code and particularly Section 46(4), was illegal. The Court

further concluded that the arrest of the petitioner at 08:45 hrs was

totally illegal and cannot be countenanced. Resultantly, the Court

held that the arrest was in flagrant violation of Section 46(4) of

the Code and the act of the police officer detaining the petitioner

from 5.30 p.m. till the petitioner was produced before the Judicial

Magistrate First Class was in utter violation of the said provisions.

In this backdrop, the Division Bench directed that an action be

initiated against the concerned by superior police officers of the

police department, in accordance with law.

The case of the petitioner is squarely covered by the said

judgment. Though the learned counsel for the CBI has placed

reliance on the judgment of the Rajasthan High Court, taking a

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view that the provisions of Section 46 (4) are merely procedural in

nature and though they are expected to be followed honestly but

there may be cases where it is impossible to fulfill the requirement

and that each and every contravention would not entitle for

declaration that the said act was illegal, is not correct view and in

true application of Section 46(4) of the Code.

The Division Bench of this Court in Mrs. Bharti S.

Khandhar Vs. Maruti Govind Jadhav, PSI and Ors.; (supra), has

clearly held the consequence for non observance of the mandate

prescribed under Section 46(4) of the Code and squarely covers

the facts of the present case. The divergent views relied upon by

the learned counsel for the 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 46(4) of the Code. However, in the light

of clear pronouncement of this Court in Mrs. Bharti S. Khandhar

Vs. Maruti Govind Jadhav, PSI and Ors.; (supra), the arrest of

the petitioner is liable to be declared as illegal and in utter

violation of the provisions contained in Section 46(4) of the Code.

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16. The precious guarantee of ‘Life and Liberty’ as enshrined in

Art. 21 of Constitution of India available to a citizen of this

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 the procedure established by law.

The Code of Criminal Procedure which outlines the manner and to

the extent to which a person can be denuded of his liberty, hence,

needs a strict compliance. Any deviation from the prescribed

procedure in the matter of arrest can therefore, be not

countenanced and is liable to be declared as illegal. In such

circumstances action of respondent No. 1 – CBI in arresting the

petitioner at 22.00 hrs on 20.2.2018 is in violation and utter

disregard to Section 46(4) of Code of Criminal Procedure and

hence declared as illegal. Needless to say that all consequent

actions more particularly that of CBI remand of the petitioner by

order dated 21.2.2018 by learned Special Judge are of no legal

consequences, null and void.

The officers of the respondent­CBI who are responsible

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for the flagrant violation of the said provisions are liable for the

disciplinary proceedings. The competent authorities are at liberty

to initiate such an action against the erring officers, so that officers

from such a responsible agency shall deter from committing such

an overtact of violation of the statutory provisions, which aim at

ensuring an individual's life and liberty and depriving the same in

accordance with the procedure prescribed by law.

17. In result, of the aforesaid discussion, the writ petition is

allowed in terms of prayer clause (a) and it is held that the arrest

of the petitioner is illegal and contrary to the provisions of Section

46(4) of the Code of Criminal Procedure. However, the CBI is not

precluded to arrest the petitioner if investigation warrants so, by

following the due procedure of law

The competent authorities are at liberty to initiate

disciplinary proceedings against the erring officers, for flagrant

violation of the statutory provisions.

The respondent No. 1 shall pay costs of Rs.50,000/­ to

the petitioner within the period of eight weeks from date of this

order. The respondent No. 1 is at liberty to recover the said cost

from erring officer/s responsible for violations, as may be

concluded after disciplinary proceedings.

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All concerned to act on an ordinary copy of this Order,

duly authenticated by Ms.M.P.Kunte, Associate.

(S.J. KATHAWALLA, J.) ( SMT. BHARTI H. DANGRE, J.)

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