New Delhi: The Bombay High Court Monday observed that the arrest of former managing director and chief executive officer (CEO) of ICICI Bank Chanda Kochhar and her husband Deepak Kochhar was “clearly without application of mind” and “in clear breach of the mandatory provisions” of the Criminal Procedure Code (CrPc) that mandates the concerned officer to record his reasons in writing while making the arrest.
A bench of justices Prithviraj K. Chavan and Revati Mohit Dere granted interim bail to the couple who had been in judicial custody since their arrest by the Central Bureau of Investigation (CBI) in the Videocon loan case. The two were arrested on 23 December 2022, four years after the central probe agency registered a case against them.
The court refrained from commenting on the merits of the allegations and limited its decision to the legality of the couple’s arrest and whether there was any contravention of the statutory provisions and constitutional mandate.
“Needless to state, that personal liberty of an individual is an important aspect of our constitutional mandate. Merely because an arrest can be made because it is lawful, does not mandate that arrest must be made. As emphasised by the apex court, a distinction must be made between the existence of the power to arrest and the justification for exercise of it,” the court said.
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Reason ‘casual, mechanical and perfunctory’
According to the high court, the reason given in the arrest memo appears to be “casual, mechanical and perfunctory”. The court came to this conclusion after going through the case documents prepared by the agency.
In the arrest memo, the CBI claimed the Kochhars were being arrested because they were named in the FIR and weren’t cooperating or disclosing the true and full facts of the case.
However, the court noted in its 49-page bail order that the reason cited by the CBI “cannot be a ground for arrest”. Moreover, the court held that the CBI’s justification for the arrest was contrary to the facts on record.
The memo gave no specific reason as mandated under Section 41 of the CrPc and, therefore, the court said, it was “unacceptable” and contrary to the “law”.
CrPc Section 41 requires officers to record their reasons for arresting — or not arresting — a suspect in writing.
Through a series of judgments, the apex court has supplemented Section 41 CrPc with a set of guidelines to check arbitrary arrests of persons. The directions in the SC verdicts also stipulate that failure to comply with the directions would render the officer liable for departmental action. It lays down a rulebook even for magistrates, who too can be liable for departmental action if they authorise detention without recording reasons.
‘Non-disclosure of facts can’t be a reason for arrest’
In the case of the Kochhar couple, the HC said, non-disclosure of true and correct facts cannot be a reason to arrest someone. The couple, it added, had the right against “self-incrimination” under Article 20(3) of the Constitution.
Treated as an essential safeguard in criminal cases, Article 20(3) gives accused persons immunity from self-incrimination and says that they cannot be compelled to give any statements.
In view of the constitutional provision, the HC held, it can’t be said that the couple haven’t cooperated with the investigation merely because they did not confess.
The bench further said that an arrest may be authorised only if the police officer has “reason to believe” that a person has committed an offence. However, that “reason to believe” must be based on credible material and no “decision to arrest can be recorded on fancy or whimsical grounds,” held the court.
The expression, ‘reason to believe’ “postulates belief and the existence of reasons for that belief,” the court said. It defined the concept of “belief,” which, it added, must be in “good faith and not casual or as an ipse dixit or a pretence or on mere suspicion.”
“It is always open for a court to examine whether the reasons for the formation of the belief have a rational connection with the formation of the belief. There must be a direct nexus or live link between the material before the officer and the formation of his belief. Thus, there must be a rational connection between the two. We may note that ‘reason to believe’ must be based on credible material and no decision to arrest can be recorded on fancy or whimsical grounds,” the bench said.
Kochhars not summoned for 4 yrs
The judges examined the sequence of events leading to the arrest of the Kochhars and noticed that the two had appeared several times before the CBI after the agency registered a case in December 2017. They not only appeared but also submitted documents, details of which are mentioned in the seizure memos.
However, the CBI never called them for questioning for three years, between 2019 and June 2022. In July 2022, the two reported to the CBI office, pursuant to a notice issued under Section 41, CrPc.
Thereafter, again in December 2022, the agency summoned them and the two appeared on 23 December, when they were arrested. “What was the reason to arrest the petitioners after four years is not spelt out in the arrest memos,” the judges said.
The court also took note of separate proceedings pending before the Enforcement Directorate (ED) and also the September 2020 order of the adjudicating authority that released the properties attached by the anti-money laundering agency. The adjudicating authority had held that the properties in question were not proceeds of crime and, therefore, were not involved in money laundering. The ED’s appeal against this order is still pending, the HC said.
Underscoring the importance of Section 41 CrPc, the HC also outlined the role of magistrates under the law. It said magistrates should not authorise detention casually and mechanically.
In the present case, the special judge who allowed the couple’s judicial custody has “overlooked the mandate of law as well as the dicta laid down by the Supreme Court,” the HC held.
Authorising a detention is not an “empty formality,” therefore, the magistrate should first satisfy himself/herself on the nature of arrest. If it does not satisfy the requirements of Section 41, CrPc, then the magistrate is duty bound not to authorise the accused further detention, the court said.
“It is expected that the directions and provisions be complied with by the concerned officers/courts, in letter and spirit. Needless to state, that personal liberty of an individual is an important aspect of our constitutional mandate,” the court said.
(Edited by Smriti Sinha)
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