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Why Were Chanda, Deepak Kochhar Granted Bail in the ICICI-Videocon Case?

The Bombay High Court called the arrest of the Kochhars, "casual" and "clearly without application of mind."

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Why Were Chanda, Deepak Kochhar Granted Bail in the ICICI-Videocon Case?
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The Bombay High Court granted former ICICI Bank CEO and Managing Director Chanda Kochhar and her husband Deepak Kochhar interim bail in the alleged Videocon loan fraud case, on Monday, 9 January.

The division bench of Justice Revati Mohite Dere and Justice PK Chavan also chided the Central Bureau of Investigation (CBI) for the arrest, stating that it was not done in accordance with the law and that it was "casual and mechanical" and "clearly without application of mind".

The CBI arrested Chanda Kochhar and Deepak Kocchar on 23 December 2022, for their alleged involvement in the Videocon-ICICI Bank loan fraud case and had sent them to judicial custody. The charges levelled against them were under:

  • Section 120B (IPC): Punishment of criminal conspiracy.

  • Section 420 (IPC): Cheating and dishonestly inducing delivery of property.

  • Section 7, Prevention of Corruption Act: Offences related to bribery of a public servant.

  • Section 13(2) read with 13(1)(d), Prevention of Corruption Act: Possession of unaccounted-for money or property by a public servant.

Why did the High Court now approve their release on interim bail? On what grounds? And what next? Keep reading.

Why Were Chanda, Deepak Kochhar Granted Bail in the ICICI-Videocon Case?

  1. 1. 'Arrest in Violation of Section 41A of CrPC'

    At the outset, the division bench said that the Kochhars' arrest was not in accordance with Sections 41A and 41(1)(b)(ii) of the Code of Criminal Procedure (CrPC).

    Section 41A makes it mandatory for police to give notice to a person to appear before them in all cases where no cognizable offence has been made out. The section also states that no arrest must be made with regard to the offence unless the person fails to comply with the police.

    Section 41(1)(b)(ii) states that an arrest of this nature can only be done if it is to prevent the commission of a further offence, or the destruction or tampering of evidence, or the inducement or threat by the accused against anyone tied to the case. Further, if the arresting officer feels the person would not present themselves before the Court when required, they can also arrest them.

    "Thus, non-compliance of the mandate of Section 41(1)(b)(ii), Section 41-A and Section 60-A of Cr.P.C will enure to the benefit of the petitioners, warranting their release on bail. We may also note that even the learned Special Judge has overlooked the mandate of law as well as the dicta laid down by the Supreme Court in Arnesh Kumar (Supra) and Satender Kumar Antil (Supra)."

    The court said that the Kochhars' grounds of arrest, as mentioned by the CBI, are simply "non-cooperation" and "non-disclosure" of the true facts of the case. The Court added that the CBI has failed to provide full and correct disclosures of the grounds of arrest.

    "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," the court said in its order.

    "According to the facts, the petitioners' (Kochhars) arrest was not done in accordance with the provisions of law. There has been non-compliance of section 41(A) thus warranting their release," the Court added.

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  2. 2. ‘Just Because an Arrest Can Be Made, Doesn’t Mean It Must Be Made’

    The Court also added that the Kochhars had complied with the investigation, appearing for summons when issued and providing documents when required, starting from the preliminary enquiry in December 2017.

    The CBI had booked the Kochhars and Venugopal Dhoot of Videocon Group, along with companies Nupower Renewables, Supreme Energy, Videocon International Electronics Limited, and Videocon Industries Limited for criminal conspiracy and corruption.

    The Court added that no summons were issued to the Kochhars from 2019 to June 2022, and that the CBI had not established any communication with the duo in the same time.

    "What was the reason to arrest the petitioners after four years is not spelled out in the arrest memos," the Court said while authorising the release of the duo on interim bail.
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  3. 3. What Now For Chanda and Deepak Kochhar?

    Well, according to the court's order, both the Kochhars are entitled to be released on bail after furnishing a surety of Rs. 1 lakh each. The Kochhars, both 61 years old, have also been ordered to surrender their passports to the CBI and ensure their cooperation and appearance for questioning when summoned by the investigation agency.

    The petitioners are entitled to be released on bail, pending the hearing and final disposal of the petitions, the HC said and listed the pleas for hearing on 6 February.

    Apart from the Kochhars, the CBI had also arrested Videocon group founder Venugopal Dhoot in the case. Dhoot has also moved the high court against his arrest, and his case is listed for hearing on Tuesday, 10 January.

    (At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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'Arrest in Violation of Section 41A of CrPC'

At the outset, the division bench said that the Kochhars' arrest was not in accordance with Sections 41A and 41(1)(b)(ii) of the Code of Criminal Procedure (CrPC).

Section 41A makes it mandatory for police to give notice to a person to appear before them in all cases where no cognizable offence has been made out. The section also states that no arrest must be made with regard to the offence unless the person fails to comply with the police.

Section 41(1)(b)(ii) states that an arrest of this nature can only be done if it is to prevent the commission of a further offence, or the destruction or tampering of evidence, or the inducement or threat by the accused against anyone tied to the case. Further, if the arresting officer feels the person would not present themselves before the Court when required, they can also arrest them.

"Thus, non-compliance of the mandate of Section 41(1)(b)(ii), Section 41-A and Section 60-A of Cr.P.C will enure to the benefit of the petitioners, warranting their release on bail. We may also note that even the learned Special Judge has overlooked the mandate of law as well as the dicta laid down by the Supreme Court in Arnesh Kumar (Supra) and Satender Kumar Antil (Supra)."

The court said that the Kochhars' grounds of arrest, as mentioned by the CBI, are simply "non-cooperation" and "non-disclosure" of the true facts of the case. The Court added that the CBI has failed to provide full and correct disclosures of the grounds of arrest.

"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," the court said in its order.

"According to the facts, the petitioners' (Kochhars) arrest was not done in accordance with the provisions of law. There has been non-compliance of section 41(A) thus warranting their release," the Court added.

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‘Just Because an Arrest Can Be Made, Doesn’t Mean It Must Be Made’

The Court also added that the Kochhars had complied with the investigation, appearing for summons when issued and providing documents when required, starting from the preliminary enquiry in December 2017.

The CBI had booked the Kochhars and Venugopal Dhoot of Videocon Group, along with companies Nupower Renewables, Supreme Energy, Videocon International Electronics Limited, and Videocon Industries Limited for criminal conspiracy and corruption.

The Court added that no summons were issued to the Kochhars from 2019 to June 2022, and that the CBI had not established any communication with the duo in the same time.

"What was the reason to arrest the petitioners after four years is not spelled out in the arrest memos," the Court said while authorising the release of the duo on interim bail.
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The order reiterates that an arrest can only be made if the investigating officer has reason to believe the arrest is necessary and that the person has committed a crime.

"This belief must be in good faith and not casual or on mere suspicion. The same must be made on credible material and no decision to arrest can be made on fancy or whimsical grounds," the court said.

"Courts have time and again reiterated the role of courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment," the bench added.

"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," the bench stated.

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What Now For Chanda and Deepak Kochhar?

Well, according to the court's order, both the Kochhars are entitled to be released on bail after furnishing a surety of Rs. 1 lakh each. The Kochhars, both 61 years old, have also been ordered to surrender their passports to the CBI and ensure their cooperation and appearance for questioning when summoned by the investigation agency.

The petitioners are entitled to be released on bail, pending the hearing and final disposal of the petitions, the HC said and listed the pleas for hearing on 6 February.

Apart from the Kochhars, the CBI had also arrested Videocon group founder Venugopal Dhoot in the case. Dhoot has also moved the high court against his arrest, and his case is listed for hearing on Tuesday, 10 January.

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

Read and Breaking News at the Quint, browse for more from explainers

Topics:  ICICI Bank   Chanda Kochhar   Videocon 

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