Stating that the grounds for arrest flouted criminal procedural law, an HC bench of Justices Revati Mohite Dere and Prithviraj Chavan said: “Courts have time and again reiterated the role of courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment.”
The CBI’s reasons for arrest are “casual, mechanical, perfunctory, clearly without application of mind”, they added in the interim order.
The bail formalities have been completed, but given the jail timings, the Kochhars will be released on Tuesday, said their advocate, Kushal Mor.
On December 23, 2022, the CBI arrested the Kochhars, both 61, based on a January 2019 FIR about alleged offences of corruption, cheating and causing loss to ICICI Bank by sanctioning high-value loans to the Videocon group.
The couple approached the high court on December 27, challenging their “illegal” arrest and sought quashing of the FIR, prosecution and remand orders. As interim relief, they sought release. The arrest “on the eve of the wedding of her son after four years of registration of FIR in teeth of the settled law was actuated by mala fides”, said Chanda Kochhar.
Ordering their release, the HC said “personal liberty of an individual is an important aspect of our constitutional mandate. Merely because an arrest can be made because it is lawful does not mandate that the arrest must be made… if arrests are made in a routine manner, it could cause incalculable harm to the reputation and self-esteem of a person”.
Significantly, the HC said a trial court must be “first satisfied that the arrest made is legal… If the arrest effected does not satisfy the requirements of Section 41 of CrPC, the court concerned is duty-bound not to authorise further detention of the accused”. It added: “Special Judge has overlooked the mandate of law as well as the dicta laid down by the Supreme Court.”
The HC granted the Kochhar couple bail on a personal bond and surety of Rs 1 lakh each, but allowed their plea to be released on cash bail for two weeks. They have to furnish the surety within two weeks. Their only son is due to get married on January 15.
On Monday, the high court said the norm of giving reasons for arrest is to “ensure that officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically”. The CBI, it noted, had in “grounds of arrest” for Chanda Kochhar merely said “the accused is an FIR-named. She has not been cooperating and disclosing true and full facts of the case”. “Not disclosing true and correct facts cannot be a reason,” said the court, as the right against self-incrimination is provided for in Article 20(3) of the Constitution. “Hence, merely because an accused does not confess, it cannot be said the accused have not cooperated with the investigation,’’ said the HC order.
In December 2017, the CBI had registered a Preliminary Enquiry (PE) and in January 2019 filed an FIR against the Kochhars and others for alleged offences of cheating and criminal conspiracy under IPC and for illegal gratification and criminal misconduct under the Prevention of Corruption Act between 2009 and 2012.
Senior counsel Amit Desai with advocate Rohan Rashmikant, for Chanda Kochhar, said she was cooperating and the arrest four years after the FIR was not only unwarranted, but in violation of the legal, constitutional and Supreme Court mandate of section 41 (provisions governing power of arrest) and 41A (notice issued for appearance and explanation when offence attracts maximum seven years’ imprisonment and no arrest is required) of the Code of Criminal Procedure (CrPC). “Arrest cannot be on the whims and fancies of an officer as done in the present case,” said Desai.
Vikram Chaudhri, senior counsel for Deepak Kochhar, reiterated the arrest was in non-compliance of sections 41 and 41A of CrPC.
For CBI, senior counsel Raja Thakare said there was no illegality in the arrests. “No case is made out for grant of any interim relief at this juncture without going into merits of the matter,” said the CBI reply, adding “Mere attendance and giving evasive replies cannot be construed to be co-operation”.
In its 49-page order, the high court said: “What was the reason to arrest the petitioners after four years is not spelt out in the arrest memos as mandated by Section 41(1)(b)(ii) CrPC.” The HC pointed out the Kochhars had reported to the CBI after summons and submitted documents. For around four years, no summons were issued nor was there any communication established by CBI with the Kochhars. The next hearing of the Kochhars’ quashing petition will be on February 6.
Watch Bombay HC orders release of former ICICI Bank MD & CEO Chanda Kochhar
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