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Exercise of Right to Remain Silent Does Not Amount to Non-Cooperation: HC

While upholding the interim bail granted to the petitioners, Chanda Kochhar and Deepak Kochar, the Bombay High Court asserted that the accused has a right to remain silent and the exercise of this right does not amount to non-cooperation.[1]

In the year 2017, a preliminary enquiry was registered pertaining to the loan sanctioned by officials of ICICI Bank to the Videocon Group of Companies in violation of banking regulations and guidelines, and the Bank’s credit policy, during the period from 2009 to 2012. Thereafter, an FIR came to be registered against the petitioners in 2019, for the alleged offences of criminal conspiracy and cheating. The petitioners appeared before the investigating officer in July 2022 upon receipt of a notice under Section 41A of the Code of Criminal Procedure, 1973.  When the petitioners appeared again before the investigating agency on December 23, 2022, they were placed under arrest. Subsequent orders also remanded the petitioners initially to police custody and later to judicial custody.

The petitioners were released on interim bail by an order dated January 9, 2023, passed by the co-ordinate bench of the Bombay High Court. This order was challenged before the Supreme Court, which directed the Bombay High Court to hear the main writ petition.

The Court observed that the subjective satisfaction of the investigation was not “wholly immune from judicial reviewability”. The reasons for arrest as listed in the case diary included non-cooperation from the petitioners and investigating the allegations pertaining to loan sanction and quid pro quo. With respect to non-cooperation, the Court emphasised the right of the accused to remain silent which was part of the right against self-incrimination under Article 20(3) of the constitution. It was held that the exercise of such right could not be equated with non-cooperation.

Referring to the reasons listed for placing the petitioners under arrest, the Court held that the arrest was based on material that was within the investigating officer’s knowledge at the time of issuance of notice.  Additionally, the petitioners were not interrogated or summoned for over three years. The Court remarked 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) Cr.P.C.”

In light of these circumstances, it was noted that the absence of circumstances or supportive material on the basis of which the decision to arrest was taken rendered the arrest illegal. The Court proceeded to set aside the arrest of the petitioners and uphold the interim bail granted vide order dated January 9, 2023.

[1] Chanda Kochhar v. CBI and Anr. (WP No.378 o 2023) and Deepak Kochhar v. CBI and Anr. (WP No.377 of 2023)