Source: Indian Express

Introduction

Recently a bench of Justices Anuja Parbhudessai and NR Borkar of Bombay High Court termed the arrest in the case Central Bureau of Investigation v. Chanda Kochhar illegal and arbitrary. The court analyzed Section 41A of Code of Criminal Procedure, 1973 (CrPC). The case is also known as ICICI Bank – Videocon Loan Fraud Case.

What is the Background of the ICICI Bank – Videocon Loan Fraud Case?

• Initiation:
  • In 2019, the CBI initiated a First Information Report (FIR) against the Kochhar couple, Venugopal Dhoot, and others, alleging various financial irregularities including cheating and corruption.
• Allegations:
  • The allegations primarily revolved around loans granted by ICICI Bank to the Videocon Group, subsequent investments in Nupower, a company linked to Deepak Kochhar, and other related transactions.
• Arrest:
  • The CBI's actions culminated in the arrest of the Kochhars on 23rd December 2022, prompting a legal battle before Bombay HC
• Bail:
  • Bombay HC granted them interim bail terming the arrest illegal.

What were the Observations Made by the Bombay High Court in ICICI Bank – Videocon Loan Fraud Case?

• Non-compliance of Section 41A of CrPC:
  • The arrest on 23rd December 2022 was not on the basis of any additional material discovered in the course of the investigation but was based on the same material which was within the knowledge of the Investigating Officer at the time of issuance of notice under Section 41A of CrPC.
  • HC said that such routine arrest without application of mind and due regard to the law amounts to an abuse of power and does not satisfy the requirement of Section 41A(3) CrPC.
• Right to Remain Silent:
  • HC also noted the couple’s right to remain silent before the Investigating Officer.
  • The High Court reaffirmed the fundamental right of an accused against self-incrimination.
    • Silence or non-cooperation during investigations cannot be equated with guilt or justifications for custodial arrests.
  • The court said right to silence emanates from Article 20(3) of the Constitution of India, 1950, which gives an accused the right against self-incrimination.
    • Suffice it to say that exercise of the right to remain silent cannot be equated with non-co-operation.

What is Section 41A of CrPC?

• About:
  • Central to the High Court's decision is the interpretation of Section 41A of the CrPC.
  • This section mandates that individuals connected to a case must be issued notices by the investigating officer, compelling them to appear for questioning.
  • Arrests are permissible only under specific circumstances, which must be duly recorded by the police officer.
  • The overarching aim is to prevent arbitrary detentions and ensure procedural fairness.
• Legal Provision:
  • Issuance of Notice:
    • The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
  • Mandatory Compliance of Notice:
    • Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
  • No Arrest on Compliance of Notice:
    • Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
  • Failure to Comply with Notice:
    • Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

What are the Landmark Cases of Section 41A of CrPC?

• Arnesh Kumar v. State of Bihar (2014)
  • In Arnesh Kumar case, the Court observed that, no arrest can be made in routine manner and the Police Officer would not arrest any person without reasonable satisfaction after some investigation.
  • Supreme Court also said that a Notice of appearance in terms of Section 41A of CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing.
  • Failure to comply with the directions aforesaid shall apart from rendering the Police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of Court to be instituted before High Court having territorial jurisdiction.
• Satendra Kumar Antil v. CBI (2022):
  • SC said that the power to arrest does not mean compulsion to arrest. The bench in this matter held a strict attitude towards non-compliance with Section 41A of CrPC.
  • The accused’s adherence to the notice under Section 41A will be considered as his cooperation in the procedure and any non-compliance would entitle the accused to a grant of bail.
  • The court also held that Bail applications should be disposed of within two weeks except if the provisions mandate otherwise, except an intervening application.
  • Applications for anticipatory bail are expected to be disposed of within six weeks except for any intervening application.

Conclusion

As the case unfolds, it becomes imperative for the judiciary to uphold the sanctity of legal processes and ensure that justice is administered impartially, irrespective of one's stature or influence. Only through unwavering commitment to constitutional values can India's legal system inspire public trust and confidence in the pursuit of justice.