Bombay High Court has criticized the Central Bureau of Investigation (CBI) for what it termed as an “abuse of power” in the arrest of former ICICI Bank CEO Chanda Kochhar and her husband Deepak in December 2022. Describing the arrests as being made “without application of mind,” the court’s observation came as it confirmed the interim bail granted to the couple.
The arrests, which occurred on December 23, 2022, were related to alleged irregularities in loans extended by the bank to the Venugopal Dhoot-led Videocon Group. Kochhars had contested the arrests, arguing that they violated the law. They were initially granted interim bail by the Bombay High Court on January 9, 2023, a decision that was upheld on February 6, 2024.
In a detailed order disclosed recently, the high court emphasized that the arrests were not based on any new evidence uncovered during the investigation. Instead, the same evidence known to the investigating officer at the time of issuing notices under section 41A of the Criminal Procedure Code (CrPC) in 2022 was cited.
According to the division bench comprising Justice Anuja Prabhudessai and N R Borkar, such arrests conducted without proper consideration of the circumstances and legal provisions amount to an abuse of power. The court further asserted that the CBI failed to demonstrate the existence of circumstances or supportive material justifying the decision to arrest.
“In the absence of this, the provision is reduced to a dead letter and the arrest is rendered illegal,” the court emphasized.
Under Section 41A of the CrPC, an investigating officer can issue a notice to appear to a suspect in a case. However, Supreme Court rulings have established that unless there are recorded reasons for the necessity of arrest, individuals who comply with such notices should not be arrested. This provision aims to prevent arbitrary arrests when investigation can proceed without detaining the individual.
The CBI argued that the couple’s arrest was warranted due to their alleged lack of cooperation with the investigation and the need to uncover any conspiracy involving other accomplices within ICICI Bank.
Challenging their arrest, the Kochhars, represented by senior counsel Amit Desai, contended that they had adhered to the CBI’s notices and had participated in questioning sessions twice. They also asserted that their right against self-incrimination should not be interpreted as non-cooperation with the investigative agency. The court concurred with this argument, stating that the right to remain silent should not be equated with non-cooperation.
Regarding the timeline of events, the court noted that the preliminary inquiry spanned from 2009 to 2017, with the FIR filed in 2019. Despite the seriousness of the alleged offense, the petitioners were not interrogated or summoned for over three years from the date the crime was registered. The court highlighted that no new evidence was presented to warrant their arrest. It emphasized that while investigating agencies have discretion to interrogate and make arrests based on subjective satisfaction, this is subject to judicial review.
In addition, the court dismissed Chanda Kochhar’s argument that her arrest was illegal because it occurred after sunset and without the presence of a woman police officer. The court clarified that the arrest took place before sunset and the case diary indicated the presence of a female police officer, thereby complying with the relevant sections of the CrPC.
