Why Bombay HC termed arrest of Chanda Kochhar and husband ‘abuse of power’

The Bombay HC said the Kochhars' arrest violated Section 41A of the Criminal Procedure Code. What is this Section, and why did the court say so? What are former ICICI Bank CEO Chanda Kochhar and her husband accused of?

Chanda Kochhar and her husband Deepak Kochhar are named in a CBI case about loans given to the Venugopal Dhoot-led Videocon Group by ICICI Bank. (Express file photo)

Terming their arrest an “abuse of power” carried out “without application of mind”, the Bombay High Court recently confirmed the interim bail granted to former ICICI Bank CEO Chanda Kochhar and her husband Deepak Kochhar. The couple is named in a CBI case about loans given to the Venugopal Dhoot-led Videocon Group by ICICI Bank.

The court said the arrests made by the CBI on December 23, 2022 violated Section 41A of the Criminal Procedure Code (CrPC).

What was the case?

In 2019, the CBI filed an FIR against the Kochhar couple, Dhoot, and others, on allegations including cheating under the Indian Penal Code and relevant sections of the Prevention of Corruption Act.

The agency had alleged that ICICI Bank sanctioned six loans to Videocon Group companies after Chanda took charge as MD and CEO between 2009-2011. In lieu of this, Videocon invested in Nupower, the company linked to her husband Deepak.

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Over three years after the FIR, the CBI arrested the Kochhars. The couple then approached the Bombay HC, claiming there was no material to arrest them since they had complied with the notices issued by the CBI and appeared before it.

On January 9, 2023, the HC granted the two interim bail. This was confirmed on February 6, and the detailed order was made available on Monday.

What is Section 41A of the CrPC?

The Section empowers a police officer conducting a probe to issue notices to people connected to the case, directing them to appear before him. If the person concerned complies with the notice, they shall not be arrested unless there are specific reasons, which have to be recorded in writing by the police officer.

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The reasons for arrest can include grounds such as preventing the person from tampering with evidence, from committing any further offence, and for a proper probe.

The provisions are meant to prevent routine arrests by the police where custody is avoidable.

In various previous judgments, like Arnesh Kumar and Satyendra Kumar Antil, the Supreme Court has reiterated the need to comply with the provisions of this Section, so that the police don’t make unnecessary arrests and magistrates do not authorise detention casually and mechanically.

What did the HC say in its order?

The Bench of Justice Anuja Prabhudessai and Justice N R Borkar said that the CBI had only submitted a case diary that purportedly records the reason for arresting the Kochhars. The CBI stated that they were not cooperating and their custody was required to unearth the conspiracy and find if there were other conspirators.

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The court said the diary reveals that the couple was served notices twice by the CBI in June and December 2022, which they complied with.

The HC noted that the Kochhars were not interrogated or summoned for over three years after the FIR was filed and their arrest in 2022 was not on the basis of any additional material discovered during the probe. The court said that under these circumstances, “such routine arrest without application of mind and due regard to the law, amounts to an abuse of power.”

Another point the court made was that an accused has the right against self-incrimination by remaining silent, and this cannot be equated with non co-operation.