The Bombay High Court on Monday granted interim bail for two weeks to former ICICI Managing Director and Chief Executive Officer Chanda Kochhar and her husband Deepak Kochhar in an alleged ICICI Bank-Videocon loan fraud case after observing that their arrest was “not in accordance with law”.
A division bench of Justices Revati Mohite-Dere and PK Chavan held that the arrest was in violation of Section 41A of the Criminal Procedure Code (CrPC) which mandates sending a notice for appearance before a police officer.
The court directed that the couple be released on furnishing a cash bail of Rs1 lakh each, for a period of two weeks.
The Kochhars were arrested by the Central Bureau of Investigation (CBI) on Dec 24 on allegations of cheating and irregularities in a loan of Rs3,250 crore granted in 2012 to the Videocon Group.
The case against the Kochhars was registered on Jan 22, 2019, and they were arrested on Dec 23, 2022.
“Nothing specific has been noted/set out therein, as mandated by Section 41(1)(b) (ii) (a) to (e),” the justices remarked. “The only reason mentioned is that the petitioners have not cooperated and not given true and correct disclosure. The same cannot be a ground for arrest.”
The court added that the object of section 41A was to “ensure that officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically”.
The High Court also noted that the investigating agency had failed to disclose any reason for their arrest after four years. It read their arrest memos, which were identical. Under ‘grounds of arrest’, the memos read: “The accused is an FIR named. S/he has been not cooperating and disclosing true and full facts of the case.”
“What the reason was to arrest the petitioners after four years is not spelt out in the arrest memos,” the bench said in a detailed 49-page order. It further said the “reason given in the arrest memos… appears to be casual, mechanical and perfunctory, clearly without application of mind”.
The justices said the liberty of an individual is an important aspect of the constitutional mandate of the courts. “Merely because an arrest can be made... does not mandate that arrest must be made,” they said.
The justices also expressed disappointment that the special judge “overlooked the mandate of law” and “the law laid down by the Supreme Court” with regard to the necessity of granting custody.
It is incumbent on a judicial officer to be first satisfied that the arrest made is legal and in accordance with the law, they said. “The same is not an empty formality,” said the bench. “In fact, when an accused is arrested and produced before the concerned court, it is the duty of the said judge to consider whether specific reasons have been recorded for arrest, and if so, prima facie, whether those reasons are relevant.”
The Kochhars have been directed to cooperate in the investigation and attend the CBI office when summoned. Also, they have been directed not to tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case.
‘Human liberty is a precious constitutional value, undoubtedly subject to regulation by validly enacted legislation…’
Supreme Court ruling in Arnab Goswami case, cited by the High Court
