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Right to remain silent cannot be equated with non-cooperation, ruled the Bombay high court while terming the arrest of the Kochhar couple by the CBI in the ICICI loan fraud case as "abuse of power" lacking proper legal consideration.
Making the judgement of February 6 public on Monday on granting regular bail to the ICICI Bank's former managing director and chief executive officer (CEO) Chanda Kochhar and her husband Deepak Kochhar, a division bench of the high court criticised the CBI for their failure to provide substantial evidence for the arrest.
The bench comprising Justices Anuja Prabhudessai (since retired) and N R Borkar highlighted that the first information report (FIR) against the Kochhars was registered in 2019 and that they were summoned for questioning only in 2022.
"Despite the gravity of the offence, the petitioners (Kochhar's) were not interrogated or summoned for a period of over three years from the date of registration of the crime," it said.
In a detailed 32-page judgment, the bench highlighted that the arrests were made without due regard for the law, signalling an abuse of power.
"Such routine arrest without application of mind and due regard to the law amounts to an abuse of power", the court said and emphasised that the right to silence, as per Article 20(3) of the Indian Constitution, protects individuals from self-incrimination and "should not be misconstrued as non-cooperation."
The Kochhars were arrested by the CBI on December 23, 2022, in connection with the Videocon-ICICI Bank loan case.
They promptly challenged the arrest in the high court, asserting its illegality and seeking bail.
The court's decision on February 6 deemed the arrests unlawful, affirming an earlier interim bail granted in January 2023.
The bench pointed out that routine arrests without proper legal considerations contradict the essence of justice.
The court noted that section 41A of the Criminal Procedure Code (CrPC) was introduced to avoid routine arrests and said this provision restricts the power to arrest when an accused person complies with the notice issued by the police to appear for questioning and mandates that an arrest shall be made only when the police are of the opinion that it is necessary.
The court held that while it was within the domain of the probe agency to interrogate an accused and to arrive at a subjective satisfaction on the issue, the same was not "wholly immune from judicial reviewability".
"The court can consider whether the reasons for deprivation of liberty are rational, reasonable or fanciful," it said.
The CBI's allegations against the Kochhars and others involved the sanctioning of credit facilities in violation of banking regulations and policies.
In addition to the Kochhars, the CBI had also arrested Venugopal Dhoot, the founder of the Videocon group, in the same case.
The high court granted him bail in January 2023.
The CBI's case revolves around allegations of financial impropriety, with claims that ICICI Bank extended significant credit to Videocon Group companies, violating banking regulations and engaging in corrupt practices.
The agency has alleged that the ICICI Bank sanctioned credit facilities to the tune of Rs 3,250 crore to these companies in violation of norms.
It further claimed that as a part of quid pro quo, Dhoot made an investment of Rs 64 crore in Nupower Renewables through Supreme Energy Pvt Ltd (SEPL) and transferred SEPL to Pinnacle Energy Trust managed by Deepak Kochhar through a circuitous route between 2010 and 2012.
The court's detailed examination of the case highlighted the need for legal diligence and adherence to due process in matters of arrest and investigation, emphasising the significance of maintaining the integrity of legal procedures.