Tuesday, January 10, 2023

The HC grants Kochhars bail citing "casual and illegal" CBI justifications for the detention

‘CBI’s reasons for arrest casual, flout law’: HC gives Kochhars bail
‘CBI’s reasons for arrest casual, flout law’: HC gives Kochhars bail

 MUMBAI: Chanda Kochhar, the former CEO and MD of ICICI Bank, and her businessman-husband Deepak Kochhar were released on bail on Monday after the Bombay high court ruled that their arrest by the CBI four years after an FIR in a loan fraud case was "unacceptable."

An HC bench composed of Justices Revati Mohite Dere and Prithviraj Chavan stated, "The grounds for arrest flouted criminal procedural law." Courts have repeatedly emphasized their role in safeguarding individual liberty and ensuring that investigations are not used for harassment.

In the interim order, they added that the CBI's arrest warrant was "casual, mechanical, perfunctory, clearly without application of mind."

According to Kushal Mor, the Kochhars' attorney, the formalities for their bail have been completed, but given the schedule at the jail, they will be released on Tuesday.

Based on a January 2019 FIR regarding alleged offenses of corruption, cheating, and causing ICICI Bank loss by authorizing high-value loans to the Videocon group, the CBI arrested the Kochhars, both 61 years old, on December 23, 2022.

On December 27, the couple went to the high court to protest their "illegal" arrest and request the quashing of the FIR, prosecution, and remand orders. They sought release as temporary relief. According to Chanda Kochhar, the arrest was "motivated by mala fides" "on the eve of the wedding of her son after four years of registration of FIR in teeth of the settled law was actuated by mala fides."

"Personal liberty of an individual is an important aspect of our constitutional mandate," the HC stated when ordering their release. The fact that an arrest can be made because it is legal does not mean that it must be made. If an arrest is made frequently, it could do irreparable damage to a person's reputation and self-esteem.

A trial court must "first satisfy that the arrest made is legal... If the arrest effected does not satisfy the requirements of Section 41 of CrPC, the court concerned is duty-bound not to authorise further detention of the accused," according to the HC. It continued: The Supreme Court's dicta and the mandate of the law have been ignored by Special Judge."

The HC let the Kochhar couple out on bail with a personal bond and surety of Rs 1 lakh each, but they were allowed to leave on cash bail for two weeks. Within two weeks, they must provide the surety. On January 15, their sole son is scheduled to tie the knot.

"ensure that officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically," the high court stated on Monday, "is the norm of giving reasons for arrest." It was noted that the CBI had stated "the accused is an FIR-named" in its "grounds of arrest" for Chanda Kochhar. She has not been providing true and complete information about the case or cooperating. The court stated, "The right against self-incrimination is provided for in Article 20(3) of the Constitution, so not disclosing true and correct facts cannot be a reason." Therefore, the HC order stated, "it cannot be said that an accused has not cooperated with the investigation simply because the accused does not confess."

The CBI filed an FIR against the Kochhars and others in January 2019 for alleged offenses of cheating and criminal conspiracy under the Indian Penal Code (IPC) and illegal gratification and criminal misconduct under the Prevention of Corruption Act between 2009 and 2012.

For Chanda Kochhar, senior counsel Amit Desai and advocate Rohan Rashmikant stated that she was cooperating and that her arrest four years after the FIR was not only unjustified but also in violation of the legal, constitutional, and Supreme Court mandate of section 41 (provisions governing power of arrest) and section 41A (notice issued for appearance and explanation when offence attracts maximum seven years' imprisonment and no arrest is required) of the Code of Criminal Procedure (CrPC). According to Desai, "arrest cannot be based on the whims and fancies of an officer as was done in the present case."

Senior counsel for Deepak Kochhar, Vikram Chaudhri, stated once more that the arrest violated sections 41 and 41A of the CrPC.

Senior counsel Raja Thakare for the CBI stated that the arrests were not illegal. The CBI responded, "Mere attendance and giving evasive replies cannot be construed as cooperating," and stated that "no case is made out for grant of any interim relief at this juncture without going into the merits of the matter."

The high court stated in its 49-page order: As required by Section 41(1)(b)(ii) of the CrPC, the arrest memos do not specify the reason for the petitioners' arrest after four years. The HC noted that the Kochhars had reported to the CBI and submitted documents in response to summonses. The CBI did not communicate with the Kochhars or issue any summonses for approximately four years. The Kochhars' quashing petition will be heard again on February 6.

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