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HC shows due process is key
The Bombay high court’s verdict ordering the release of former managing director and chief executive officer of ICICI Bank, Chanda Kochhar, and her husband, businessman Deepak Kochhar, points to lapses in the way India’s premier investigation agency carries out its work
The Bombay high court’s verdict ordering the release of former managing director and chief executive officer of ICICI Bank, Chanda Kochhar, and her husband, businessman Deepak Kochhar, points to lapses in the way India’s premier investigation agency carries out its work, even as it makes a compelling case for more discretion and restraint in legal action that curtails individual liberty. A bench of justices Revati Mohite Dere and PK Chavan made three important arguments. One, it found that the Central Bureau of Investigation (CBI) did not follow the due process laid down in the Code of Criminal Procedure, which spells out the conditions and circumstances under which a person can be arrested. The court criticised the “casual, mechanical and perfunctory” way in which the investigators filed papers and said this lack of application of mind was a clear breach of the law that rendered the arrest illegal. Two, it said that a trial court must be satisfied that a particular arrest is legal and should not extend custody if the conditions are not satisfied. And three, it reiterated the judiciary’s commitment to upholding personal liberty and sounded a warning to prosecuting agencies, saying merely because an arrest can be made doesn’t mean it must be made. CBI has said it will appeal the decision in the Supreme Court (SC), but there are two broad learnings the agency can take from it.
The Kochhars are accused of corruption, cheating and violating the law in sanctioning dubious high-value loans to Videocon. These are serious charges that need to be investigated and acted on, but the casual manner of CBI’s approach pointed out by the court does not speak well of the quality of the investigation. Also, in a country where the first port of call for most citizens — the district and lower judiciary — often sides with the prosecution and denies bail, the high court’s admonishment of magistrates who authorise detention automatically is telling. Time and again, the SC has spoken about the importance of upholding personal liberty in a democracy. It has also formulated a triple-test doctrine — it says an accused can be granted bail if they’re not a flight risk, liable to tamper with evidence or influence witnesses — but to little avail, especially in the lower judiciary.
