Can the CBI Arrest an Accused in White Collar Crime Cases? – A Detailed Legal Analysis
Yes, the Central Bureau of Investigation (CBI has the legal power to arrest an accused in white collar crime cases, but such power is not absolute and must be exercised strictly in accordance with statutory provisions, constitutional safeguards, and judicial guidelines.
Introduction
White collar crimes such as corruption, bank frauds, economic offences, corporate fraud, and misuse of public office often involve complex investigations handled by the CBI. One of the most common and critical questions faced by accused persons, corporate executives, public servants, and legal practitioners is whether the CBI can arrest an accused during investigation and under what circumstances such arrest is legally justified.
Unlike popular belief, arrest by the CBI is not automatic upon registration of a case. The power to arrest exists, but it is regulated, conditional, and judicially monitored, especially in white collar crime cases where arrest is treated as an exception rather than a rule.
Legal Source of CBI’s Power to Arrest
CBI as a Police Agency
The CBI derives its powers of investigation, including arrest, from:
- The Delhi Special Police Establishment Act, 1946 (DSPE Act)
- Bharatiya Nagarik Suraksha Sanhita, 2023 (CrPC)
Under the DSPE Act, CBI officers are deemed to be police officers for the purposes of investigation of notified offences.
Power of Arrest Under the Code of Criminal Procedure
Section 35 BNSS – Power of Police to Arrest Without Warrant
CBI officers, being police officers, exercise arrest powers under Section 35 BNSS, which permits arrest without warrant in cognizable offences, subject to strict conditions.
However, after the 2009 and 2010 amendments, arrest is no longer automatic and must satisfy necessity tests.
Conditions for Arrest Under Section 35 BNSS
An arrest can be made only if:
- There is reasonable suspicion of commission of a cognizable offence, and
- The arrest is necessary for:
- Proper investigation
- Preventing tampering with evidence
- Preventing inducement or threat to witnesses
- Ensuring presence of the accused in court
- Preventing further offence
In white collar crime cases, courts insist on strict compliance with these conditions.
Special Provisions Applicable to White Collar Crimes
Prevention of Corruption Act, 1988
Section 19 – Sanction for Prosecution
While sanction under Section 19 is required for prosecution of public servants, it is not a prerequisite for arrest, except where prior approval is specifically mandated under amended provisions.
Section 17A – Prior Approval for Investigation (Public Servants)
Under Section 17A of the Prevention of Corruption Act, prior approval of the competent authority is required before conducting inquiry or investigation against a public servant for acts done in discharge of official duties.
Important Exception
No prior approval is required where:
- A person is arrested on the spot
- For accepting or attempting to accept illegal gratification
This exception preserves the power of the CBI to conduct trap cases and immediate arrests.
Arrest in Economic and Financial Offences
White collar crimes often involve:
- IPC offences (cheating, criminal breach of trust, forgery)
- Offences under special statutes such as:
- Prevention of Corruption Act
- Companies Act
- Banking laws
In such cases:
- Arrest is not mandatory
- Summons and notices are preferred
- Custodial interrogation must be specifically justified
Judicial Guidelines Governing Arrest by CBI
Arrest Is Not Punishment
Courts have consistently held that:
- Arrest is a serious invasion of personal liberty
- Arrest should not be used as a tool of harassment or coercion
Section 35 BNSS – Notice of Appearance
In offences punishable up to 7 years, including many white collar crimes, the investigating agency must:
- Issue notice of appearance
- Avoid arrest unless non-cooperation is established
CBI is bound by these provisions.
Supreme Court’s Approach to Arrest in White Collar Crimes
The Supreme Court has repeatedly emphasized:
- Arrest should be the last resort
- Economic offences alone do not justify arrest
- Custodial interrogation must be genuinely required
CBI is expected to act with restraint, especially when the accused:
- Is cooperating
- Has deep roots in society
- Is not a flight risk
Arrest During Preliminary Enquiry (PE)
Can CBI Arrest During PE?
No.
A Preliminary Enquiry (PE) is a fact-finding exercise and not a formal criminal case.
- No arrest can be made during PE
- Arrest is possible only after registration of a Regular Case (RC)
Arrest After Registration of Regular Case (RC)
Once an RC is registered:
- CBI can arrest the accused
- But only after satisfying statutory conditions
- Arrest memo and procedural safeguards must be strictly followed
Safeguards Available to the Accused
An accused arrested by the CBI is entitled to:
- Information of grounds of arrest
- Legal counsel
- Production before Magistrate within 24 hours
- Right to medical examination
- Protection under Articles 20, 21, and 22 of the Constitution
Anticipatory Bail and CBI Arrests
In white collar crime cases:
- Courts frequently grant anticipatory bail
- Especially when:
- Custodial interrogation is not required
- Evidence is documentary
- Accused is cooperating
The possibility of CBI arrest is a valid ground for seeking anticipatory bail.
Is CBI Arrest Mandatory in Every Case?
No, arrest by the CBI is not mandatory in white collar crime cases.
Many investigations proceed:
- Without arrest
- Through summons, notices, and questioning
- Culminating in filing of charge-sheet
Consequences of Illegal or Unjustified Arrest
If arrest is made:
- Without compliance of Section 35 BNSS
- Without recording reasons
- In violation of judicial guidelines
Then:
- Arrest can be declared illegal
- Bail may be granted immediately
- Disciplinary action may follow
Practical Reality of CBI Arrests in White Collar Crimes
In practice:
- Arrests are rare and selective
- Usually in trap cases or serious corruption
- Courts scrutinize arrest decisions closely
CBI is expected to balance investigation needs with constitutional liberty.
Conclusion
The CBI does have the legal authority to arrest an accused in white collar crime cases, but this power is neither automatic nor unfettered. Arrest can be made only after registration of a Regular Case and only when statutory conditions under the BNSS and special laws like the Prevention of Corruption Act are strictly satisfied. Judicial precedents have firmly established that in white collar and economic offences, arrest is an exception and not the rule. Any arrest by the CBI must be justified by necessity, proportionality, and legality, failing which it is vulnerable to judicial interference and grant of bail.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304