Observing that the “right to remain silent” cannot be equated with non-cooperation, the Bombay High Court has confirmed bail of former Managing Director and Chief Executive Officer (CEO) of ICICI Bank Chanda Kochhar and her husband Deepak Kochhar by terming their arrest in the ICICI - Videocon loan fraud case as “abuse of power” lacking proper legal consideration.
The court also noted that the Central Bureau of Investigation (CBI) had failed to provide substantial evidence for the arrest.
The court, on February 6, had confirmed the bail granted to Kochhars last year. The detailed order copy was made available on Monday.
The court noted that the first information report (FIR) was registered against the Kochhars in 2019, however, they were summoned for questioning only in 2022. “Despite the gravity of the offence, the petitioners (Kochhar's) were not interrogated or summoned for a period of over three years from the date of registration of the crime,” a bench of Justices Anuja Prabhudessai (since retired) and NR Borkar remarked.
“Such routine arrest without application of mind and due regard to the law amounts to an abuse of power,” the bench said. It underlined that the right to silence, as per Article 20(3) of the Indian Constitution, protects individuals from self-incrimination and “should not be misconstrued as non-cooperation”.
The CBI arrested Kochhars on December 23, 2022, in connection with the Videocon-ICICI Bank quid pro quo loan case. The Kochhars had immediately approached the HC challenging their arrest and sought bail.
HC had termed their arrest illegal
While releasing them on interim bail, the HC on January 9, 2023, had termed their arrest illegal.
The judges noted that section 41A of the Code of Criminal Procedure (CrPC) was introduced to avoid routine arrests and said this provision restricts the power to arrest when an accused person complies with the notice issued by the police to appear for questioning and mandates that an arrest shall be made only when the police are of the opinion that it is necessary.
The bench held that while it was within the domain of the probe agency to interrogate an accused and to arrive at a subjective satisfaction on the issue, the same was not “wholly immune from judicial reviewability”. “The court can consider whether the reasons for deprivation of liberty are rational, reasonable or fanciful,” the court underlined.
ICICI - Videocon loan fraud case
The central agency had arrested Chanda and Deepak Kochhar and the founder of the Videocon group Venugopal Dhoot. The CBI FIR names Kochhars and Dhoot along with companies Nupower Renewables (NRL) managed by Deepak Kochhar, Supreme Energy, Videocon International Electronics Ltd and Videocon Industries Limited, as accused.
The CBI has alleged that ICICI Bank sanctioned credit facilities to the tune of Rs 3,250 crore to the companies of Videocon Group promoted by Dhoot in violation of the Banking Regulation Act, RBI guidelines, and credit policy of the bank.
As a part of quid pro quo, Dhoot made an investment of Rs 64 crore in Nupower Renewables through Supreme Energy Pvt Ltd (SEPL) and transferred SEPL to Pinnacle Energy Trust managed by Deepak Kochhar through a circuitous route between 2010 and 2012, the CBI alleged.
