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(f) The FIR was registered for the offence punishable u/s.120B r/w 420 of IPC and Sections 7, 11 and 12 of P.C.Act which is punishable for a maximum period of seven years. Hence, compliance of Section 41A of Cr.P.C r/w sub-clauses of Section 41(1)

(b)(ii) of Cr.P.C in terms of guidelines laid down by Supreme Court in the case of Arnesh Kumar is mandatory;

(g) While disposing of Writ Petition No.2846 of 2021 the respondent-CBI had submitted that compliance of Section 41A of Cr.P.C would be adhered. The High Court had recorded in the order dated 12th August 2021 that learned counsel representing respondent had submitted, on instructions, that appropriate procedure as contemplated in the decision of Apex Court in case of Arnesh Kumar (supra) will be adhered to and hence the petition was disposed of by taking into consideration said statement. However, the respondent- CBI has not acted in accordance with the statement made before High Court and not complied the directions contained in the case of Arnesh Kumar (supra). The application preferred by respondent-CBI was contemptuous and in disregard to the order dated 12 th August 2021 passed by this Court. The Special Court (CBI) has failed to take note of observations in order dated 12th August 2021 passed by High Court in Writ Petition N.2846 of 2021;

17. The application for production warrant preferred by CBI was opposed by petitioner by preferring application dated 5 th August 2021 and filing written submissions. While allowing the application for production warrant vide order dated 9 th August 2021, the learned Special Judge (CBI) has observed that guidelines 11.6 pertaining to the notice of appearance in terms of 41A of Cr.P.C and guideline 11.7 consequence of failure to comply with the direction laid down in the case of Arnesh Kumar (supra) are not applicable relating to present case, as if petitioner was otherwise available, then there was no impediment in the way the Investigating Officer to cause his arrest by making compliance of guidelines laid down in the cited case as well as in the case of Arnesh Kumar (supra). As petitioner is in custody in another crime and detained in Taloja jail pursuant to the order of PMLA Court, Mumbai, so option of production warrant is available to the investigating officer. The prosecution has averred in the application as well as submissions that the custodial interrogation of accused is necessary for proper investigation in the crime. In the FIR prima facie allegations levelled against accused indicate that he obtained gratification of Rs.378 crores and caused loss to YES Bank. After the production of accused before the Court, pursuant to production warrant the investigating officer is at liberty to either claim CBI custody or judicial custody. This order was challenged before High Court. While disposing of Writ Petition No.2846 of 2021, by order dated 12th August 2021, the High Court did not set aside the order dated 9th August 2021 issuing production warrant.

By relying on order of High Court dated 12 th August 2021 it was submitted that High Court has set aside observations of Court that guidelines issued in the case of Arnesh Kumar (supra) are not applicable. Hence the guidelines in the said decision needs compliance;

(iii) The directions issued by Supreme Court in Arnesh Kumar (supra) considering mandate of Section 41 and 41A viz paragraph 11.6 and 11.7 needs compliance;

(iv) The judicial obligation to reach satisfaction regarding compliance with mandatory requirement of Section 41A Cr.P.C is applicable even in the case of accused who are in judicial custody in relation to other cases;

(f) Before the High Court, in Writ Petition No.2846 of 2021, issue was that if accused is arrested, then it is necessary to follow the rituals as laid down under Section 41 of Cr.P.C. Accordingly prosecution made submission that they will comply appropriate procedure as contemplated in the judgment of Apex Court in the case of Arnesh Kumar (supra). As the prayer of CBI to effect arrest was rejected, circumstances does not exist to follow guidelines in case of Arnesh Kumar (supra);