Arrest of Chanda Kochhar amounted to abuse of power by CBI: Bombay High Court

MUMBAI: The arrest of ICICI Bank’s former Managing Director and Chief Executive Officer (CEO) Chanda Kochhar and her husband Deepak Kochhar by the Central Bureau of Investigation (CBI) in a loan fraud case was “without application of mind and due regard to the law”, amounting to an “abuse of power”, the Bombay High Court has said.

A division bench of Justices Anuja Prabhudessai and N R Borkar had on February 6 held the Kochhars’ arrest as illegal and confirmed a January 2023 interim order passed by another bench granting them bail.

In the order made available on Monday, the court said the CBI has been unable to demonstrate the existence of circumstances or supportive material based on which the decision to arrest was taken.

The absence of such circumstances renders the arrest illegal, it said.

“Such routine arrest without application of mind and due regard to the law amounts to an abuse of power,” the court said.

The court also refused to accept the probe agency’s contention that the arrest was made as the Kochhars were not cooperating with the probe and said the accused had a right to remain silent during interrogation.

“The right to silence emanates from Article 20(3) of the Indian Constitution, which gives an accused the right against self-incrimination. Suffice it to say that exercise of the right to remain silent cannot be equated with non-cooperation,” it said in the order.

The CBI arrested the couple on December 23, 2022, in the Videocon-ICICI Bank loan case.

They immediately moved the high court challenging the arrest and sought for the same to be declared illegal, and by way of interim order, sought to be released on bail.

On January 9, 2023, the court, in an interim order, granted the Kochhars bail, noting that the CBI had made the arrest casually and mechanically and without application of mind.

In the February 6 order, the bench noted that section 41A of the Criminal Procedure Code (CrPC) was introduced to avoid routine arrests.

It cited that 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 court held that while it was within the domain of the investigating agency to interrogate an accused and to arrive at a subjective satisfaction on the issue, the same was not “wholly immune from judicial reviewability”.