On the Bombay High Court granting bail to the Kochhars

The Bombay High Court has re-affirmed the most elementary legal position — the mere power to do something does not act as a justification for doing it. That its order of 09.01.2023 directing the release of Deepak Kochhar and Chanda Kochhar by granting them interim bail on this very premise has generated such a buzz is not indicative of any pathbreaking findings made, but on how distant even these elementary legal principles appear when it comes to our criminal process that every such order warrants celebrations within the community of defence lawyers akin to India winning a cricket match. 

Chanda and Deepak Kochhar were named as accused persons by the Central Bureau of Investigation (CBI) in an FIR lodged in 2018. They were not arrested then, and appeared numerous times before the agency (as well as other agencies investigating them) [a useful list of dates begins at page 8 of the order]. On 23.12.2022, they were again present at the office of the CBI for questioning, only this time they were both arrested. The grounds disclosed for their arrest in the Arrest Memo were that (i) they were named as accused persons, and (ii) they were not cooperating with the ongoing probe. 

Without seeming to engage with the sufficiency of these reasons for arrest, the trial court first remanded them to police custody and then to judicial custody. On 27.12.2022, it appears that the FIR, the arrests, remand orders were all challenged before the Bombay High Court. As we already know, going by the premise that the mere power to do something—arrest—does not act as a justification for it, the High Court held that the justifications for the Kochhars' arrests required scrutiny, and when scrutinised these came up horribly short of passing muster under the law as present under Section 41 of the Criminal Procedure Code 1973 and as had been clarified by the Supreme Court most recently in Arnesh Kumar (2014) and Satender Antil (2022). 

It is likely that the High Court's specific findings on the insufficiency of justifications behind the arrests will garner most attention. Being named in a case in and of itself was never grounds for arrest, even more so where four years had lapsed between the lodging of a case and the arrest. And in respect of the 'non-cooperation' — an idea incidentally also critical to the Satendar Antil judgment — the High Court agreed with the view that cooperation could not be a substitute for 'confession', such that when an accused did not sing the tune of an agency she would be labelled as being non-cooperative. On closer scrutiny, arguably more important conclusions become visible that are not headlined in the same manner, as well as some cracks in the reasoning and the obvious limits to this order. 

First, to the conclusions that hopefully other courts can build upon to restore a wall to protect personal liberty. The High Court order does not only advance the basic premise that there must be sufficient justifications for an arrest, but it also indirectly indicates that these justifications must be captured in a public facing document in the form of the arrest memo, and not hidden away in the case diaries where an accused will not have access to them. This is critical, because it is only the arrest memo that is shared with the family upon arrest and, as extracted in the order, the reasons for arrest that are disclosed therein are often unintelligible or party excuses. The High Court's order stands for the position that given the gravity of the measure in question, full and adequate reasons ought to be recorded and disclosed for the process to be in consonance with the letter and spirit of the law. 

Besides the casting of clearer duties on police, the order also restates a requirement for trial courts to engage with the sufficiency of an arrest when a remand to custody beyond 24 hours is sought. In this case, the High Court could not discern from the remand orders whether the trial court had even considered the issue of the legality of arrest, and it severely reprimanded the trial court for failing to do so. It is not the first order to do so, and the High Court invokes earlier cases to support its view, but the importance of our trial courts discharging their role as the first bastions for protecting our personal liberty — as the late K.G. Kannabiran had said — cannot be overstated. Not only from a broader, socio-political standpoint, but also from a legal remedies standpoint. Where an illegal arrest is sanctified by a remand to custody, the writ of habeas corpus against such an arrest is practically extinguished. 

It is possibly why the Kochhars also did not file a writ only challenging their arrests, but filed an omnibus writ petition challenging the very registration of the case and all executive / judicial action emanating therefrom (a strategy that had also been taken when Arnab Goswami was arrested in an old case, where incidentally the senior counsel for Ms Chanda Kochhar was on the opposite side). Moving an interim relief in such a petition, as opposed to a regular habeas or even seeking regular bail before the trial court, was a strategic call that clearly paid great dividend.   

Then there are the tiny cracks. While the High Court comes down heavily on agencies treating cooperation synonymous with confessions, that happens by the High Court accepting the argument that this was the only possible cooperation left. The High Court did not engage with the idea of cooperation on its own terms. If it had done so, it would have had to square up to the language of Section 41 of the Cr.P.C. which justifies an arrest in cases where it is necessary for 'proper investigation of the offence'. What is the scope and ambit of this 'proper investigation' thus remains unclear, even as it remains clear that it certainly is not the practice of taking custody in the hope of extracting confessions. One imagines that this order will not be the slaying of the non-cooperation dragon after all 

Lastly, the limitations. The offences alleged against the Kochhars were not of the very serious variety — a maximum seven years punishment was prescribed. Within the statutory universe of Section 41, and cases that have interpreted the power to arrest such as Arnesh Kumar, there is a different treatment for these offences. The enumerated list of justifications provided for arrest in such cases does not cover the more serious class of offences punishable with more than seven years imprisonment. One can only hope that the findings on sufficiency of recorded justifications and engagement with them by the trial courts at time of remand is not sought to be limited by future courts using this classification. 

To sum up, The Kochhars were arrested four years after a case was filed against them without any real basis recorded in writing. They could afford to move the High Court during vacations, get an urgent listing and hearing, and get the High Court to remind everyone that personal liberty ought not to be trifled with. What they did is not a route that many similarly placed accused persons can hope to follow, but hopefully the fruits of their labour can be enjoyed and built upon to narrow the gap between the promise of Article 21 and the practices of our law enforcement agencies.