Abuse of Process: Bombay High Court Declares CBI's Arrest Of Fmr ICICI Bank CEO & MD Chanda Kochhar, Her Husband Deepak Kochhar As “Illegal”

In a detailed order declaring the arrest of former ICICI bank CEO and MD Chanda Kochhar and her husband Deepak Kochhar by CBI “illegal,” the Bombay High Court called the investigating agencies acts an “abuse of power.”

The division bench of Justices Anuja Parbhudessai and NR Borkar observed: “Such routine arrest without application of mind and due regard to the law amounts to an abuse of power and does not satisfy the requirement of Section 41A(3) CrPC.”

It may be noted that the couple was arrested by the CBI on December 23, 2022, just a couple of weeks before their son's weeding and over three years after an FIR was registered against them in the ICICI Bank – Videocon Loan Fraud Case.

The couple approached the High Court soon after their arrest. In a detailed order, a coordinate bench of the court granted them interim bail and held their arrest to be prima facie illegal.

In its final order, the HC agreed with the observations of the coordinate bench. It opined that the involvement of bank official in the conspiracy was not discovered during the course of investigation but was known to the agency at the time of registration of FIR in 2019 despite which the CBI didn't find the need to arrest duo for three years. It said: 

“The arrest on 23.12.2022 was not on the basis of any additional material discovered in the course of the investigation, but was based on the same material which was within the knowledge of the Investigating Officer at the time of issuance of notice under Section 41A. Such routine arrest without application of mind and due regard to the law amounts to an abuse of power and does not satisfy the requirement of Section 41A(3) Cr.P.C.”

The court opined that while an investigating agency can interrogate an accused, the accused has a right to remain silent.

“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 co-operation,” it held.

The court added that an Investigating Agency can interrogate the accused and to arrive at a subjective satisfaction on the issue of arrest. However, it is within the powers of the Court to ensure that the subjective satisfaction is on a factual basis and not on the basis of the whims or caprice of the investigating agency.

The bench noted that a preliminary inquiry relating to the sanctioning of a loan to the Videocon Group in violation of banking regulations was registered in 2017 and the petitioners were questioned during the preliminary inquiry. An FIR was registered against them in 2019 for criminal conspiracy and cheating related to the loan sanctioning.

It observed that despite the gravity of the offence, the petitioners were not interrogated or summoned for over 3 years after the FIR. In June 2022, notices were served indicating their arrest was not required at that time under section 41A CrPC. The petitioners complied and appeared before the investigating officer for interrogation as per the notices.

However, on 23.12.2022, the petitioners were arrested by the investigating agency on grounds of non-cooperation to unearth the full conspiracy behind sanctioning the Rs.1875 crore loan to Videocon.

Appearances – Sr Advocate Amit Desai, Rohan Dakshini and Pooja Kothari for Chanda Kochhar

Advocate Kuldeep Patil for CBI