Mumbai: Calling it an “abuse of power”, the Bombay High Court said that the arrest of former ICICI Bank CEO Chanda Kochhar and her husband Deepak by the Central Bureau of Investigation (CBI) in December 2022 was done “without application of mind”. The court made the observation in its order confirming the interim bail granted to the couple.
The two were arrested on December 23, 2022 in connection with alleged irregularities in loans provided by the bank to the Venugopal Dhoot-led Videocon Group. They had challenged the arrests claiming that it was in violation of the law and were granted interim bail by the Bombay High Court on January 9, 2023, which was confirmed on February 6, 2024.
In the detailed order made available on Monday, the high court has said that their arrest was not on the basis of any additional material discovered during the course of investigation, but the same material within the knowledge of the investigating officer when they were issued notices under section 41A of the Criminal Procedure Code (CrPC) in 2022.
“Such routine arrest without application of mind and due regard to the law amounts to an abuse of power and does not satisfy the requirement of section 41A (3) CrPC,” the division bench of Justice Anuja Prabhudessai and N R Borkar said. The bench added that the CBI has not been able to demonstrate the existence of circumstances or supportive material on the basis of which the decision to arrest was taken.
“In the absence of this, the provision is reduced to a dead letter and the arrest is rendered illegal,” the court added.
Under provisions of Section 41A of CrPC, an investigating officer can issue a notice for appearance to a suspect in a case. Various judgments of the Supreme Court have ruled that if the person has appeared before the court and complied with the notice, the person shall not be arrested unless there are reasons recorded as to why the arrest is necessary. The provision is to avoid routine arrests when a person can be investigated without taking them into custody.
The CBI had claimed that a decision was taken to arrest the couple as they had not cooperated with the probe and the investigators needed to unearth the conspiracy and ascertain names of any other co-conspirators of ICICI Bank.
The Kochhars, through senior counsel Amit Desai, had challenged their arrest and argued they had complied with notices issued to them by the CBI and had appeared for questioning twice. They also said that their right against self-incrimination cannot be called non-cooperation with the probe agency. The court agreed with this contention and said that exercise of the right to remain silent cannot be equated with non-cooperation.
The court said that the preliminary inquiry in the case was from 2009 to 2017 and the FIR was filed in 2019. “Despite the gravity of the offence, the petitioners were not interrogated or summoned for a period of over three years from the date of registration of the crime,” it said, adding that for their arrest, no new material was submitted. It said that there the investigating agency has the domain to interrogate an accused and arrive at a subjective satisfaction on the issue of arrest, that is not wholly immune from judicial reviewability.
Meanwhile, the court also rejected the contention of Chanda Kochhar that the arrest was illegal also because she was arrested after sunset and it was not done by a woman police officer. The court said that she was arrested before sunset and the case diary revealed that the arrest was in the presence of a woman police officer and hence there was no contravention of other sections of the CrPC.
Agencies

Agencies