Chanda Kochhar Case: Arrest Can’t Be On 'Fancy, Whimsical Grounds', Says Bombay High Court
Reasons for Kochhar's arrest appear to be casual, mechanical and perfunctory, clearly without application of mind, says Bombay HC.
An arrest is not a mandatory exercise and it should only be done in such circumstances where it's absolutely necessary, the Bombay High Court said as it granted an interim release to the Kochhar couple.
There should be sufficient reasons to believe and it can’t be based on fancy or whimsical grounds, the court said, while adjudicating on a petition challenging the legality of the arrest of the couple, who were released on a cash bail of Rs 1 lakh each.
The Kochhar couple had approached the Bombay High Court, alleging illegality in their arrest and sought quashing of the FIR that was filed against them. They had also sought their release as an interim relief to take part in their son’s wedding, which is scheduled for Jan. 15.
Chanda Kochhar, former CEO and MD of ICICI Bank Ltd., and her husband Deepak Kochhar were arrested by the CBI on Dec. 23 as part of its investigations into the loans advanced by ICICI Bank to the Videocon Group, during her tenure as the MD of the bank in 2012.
The arrest was made on account of lack of cooperation of the parties in the investigation and for non-disclosure of true facts of the case.
The high court found the arrest memo significantly lacking in recording the reasons for arrest.
The requirements set out in Section 41 and Section 41A of the Criminal Procedure Code were not met, the order said. Section 41 deals with situations when the police may arrest without warrant and 41A lays down the requirement of notice of appearance before the police.
The high court highlighted that the requirement is that the police officer must have "reason to believe" that the person has committed an offence. This reason must be based on credible material and no decision to arrest can be recorded on fancy or whimsical grounds. And the reasons must be recorded in writing.
In the present case, the sole ground provided as the reason for arrest is the non-cooperation by the parties and non-disclosure of true facts. This is insufficient as it fails to set out the specifics of arrest as mandated by the law and, therefore, cannot be the ground for arrest, according to the court.
Merely because an accused does not confess, it cannot be said that the accused have not co-operated with the investigation.Bombay High Court Order
The high court noted that the facts sufficiently reveal cooperation from the couple. They presented themselves before the investigation agency several times between 2017 to 2022 when summoned. What warranted an arrest after four years is not spelt out in the arrest memo, it said.
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.Bombay High Court Order
The court reiterated the words of the Supreme Court in the 'Arnesh Kumar case' to highlight that arrest must be made only in dire circumstances.
"Merely because an arrest can be made because it is lawful, does not mandate that arrest must be made," the court said in its order.
Routine arrest can cause serious harm to the reputation and self-esteem of a person and is against the notions of presumption of innocence, it said.
The special magistrate, too, failed to ensure that arrest is made in accordance with the law, the court said. The magistrate court is duty-bound to not authorise further detention if required procedures are not met.
"The magistrate should have also mentioned, however brief, in the order the reasons for warranting further detention which is not met in the instant case."
While accepting some of the procedural improprieties, the court did not consider the submission made by Chanda Kochhar’s counsel that a lady officer was not present at the time of arrest.
It has listed the matter on Feb. 6 for hearing.