In a major embarrassment for the CBI and the Magistrate who “authorised” their further detention, the Bombay High Court on Monday held that the arrest of former Managing Director and Chief Executive Officer (CEO) of ICICI Bank Chanda Kochhar and her husband Deepak Kochhar as illegal on the ground that it did not comply with the provisions of the Code of Criminal Procedure (CrPC).
While releasing Kochhars on bail against a sum of `1 lakh each, with one or two sureties for the like amount, a HC bench of Justices Revati Mohite Dere and PK Chavan held that their arrests were not in accordance with law. In their 49-page judgment, the two judges observed that the grounds stated in the identical arrest memos of the Kochhars did not record any specific grounds for arrest as mandated by Section 41 of the CrPC.
“Nothing specific has been noted/set-out therein, as mandated by Section 41(1)(b) (ii) (a) to (e). The only reason mentioned is that the petitioners have not co-operated and not given true and correct disclosure. The same cannot be a ground for arrest. The ground for arresting the petitioners as stated in the arrest memos is unacceptable and is contrary to the ground(s) on which a person can be arrested. ‘Not disclosing true and correct facts’ cannot be a reason, inasmuch as, the right against self incrimination is provided for in Article 20(3) of the Constitution,” the HC bench observed.
Virtually pulling up the CBI for arresting Kochhars without specific grounds, the HC bench noted, “It is further observed that if arrests are made in a routine manner, it could cause incalculable harm to the reputation and self-esteem of a person and that presumption of innocence is a facet of Article 21, which would ensure to the benefit of an accused”.
“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) of the CrPC. The reason given in the arrest memos to arrest the petitioners, having regard to the facts as stated aforesaid, appears to us, to be casual, mechanical and perfunctory, clearly without application of mind,” the judges observed.
Kochhars were arrested on December 23, 2022, in connection with a case linked to alleged irregularities in a `3,000-crore loan provided to the Videocon Group when Chanda Kochhar was heading ICICI Bank. Kochhars had challenged their arrest by the CBI.
Not sparing the magistrate who authorised their arrest, the two judges observed, “We may also note that even the learned Special Judge has overlooked the mandate of law as well as the dicta laid down by the Supreme Court in Arnesh Kumar (Supra) and Satender Kumar Antil (Supra)”.
“It is incumbent on the judicial officer authorising detention under Section 167 the CrPC to be first satisfied that the arrest made is legal and in accordance with law and that all the constitutional rights of the person arrested are satisfied. The same is not an empty formality,” they observed.
“If the arrest affected does not satisfy the requirements of Section 41 the CrPC, the concerned court is duty bound not to authorise further detention of the accused and release the accused forthwith. 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 and whether a reasonable conclusion could at all, be reached by the officer that one or the other conditions in Section 41(1)(b)(ii)(a) to (e) are attracted,” the HC bench noted.
“A perusal of the remand order passed by the learned Special Judge, Mumbai, does not record the satisfaction as required to be given for authorising the detention of the petitioners with the respondent No.1-CBI. The onus of recording satisfaction lies not only on the officer but even on the Judge,” the Judges noted.