On September 7th 2020, Mr. Deepak Kochhar, husband of former ICICI Bank chairperson Chanda Kochhar, was arrested for being in connection to the ICICI Bank- Videocon money laundering case under the provisions of the Prevention of Money Laundering Act (PMLA) by the Enforcement Director for the purpose of questioning.
The money laundering case is based on a CBI’s FIR against the couple and others for defrauding ICICI Bank by granting loans illegally in lieu of kickback.
Mr. Kochhar was in the custody of ED till 19th September after which he was taken to Delhi for the purpose of questioning but there he got tested positive for the novel coronavirus and was admitted to AIIMS Delhi and referred to NCI, Jhajjar. For questioning purposes and not wasting the time granted to interrogate Mr. Kochhar, ED obtained an order of transferring Deepak Kochhar to judicial custody during his treatment period.
On September 14th, Mumbai Court passed an order to that effect requiring Kochhar to be presented before it within 2 days after being tested negative and discharge from the hospital for further orders.
During his treatment, Mr. Kochhar filed a plea seeking to shift him to a private hospital on his own expense which was declined by the Delhi HC stating that Kochhar was presently under the judicial custody of a Special PMLA court in Mumbai and the Delhi High Court can't shift him from one place to another. But later the plea was accepted by the special PMLA court in Mumbai and was allowed to be shifted to a private hospital and now he is being treated in Apollo hospital in Delhi.
Mr. Kochhar is represented by Sr. Adv. Mukul Rohatgi filed a writ petition under article 226 challenging his arrest and remand by ED as illegal and to grant him interim bail before Delhi Court
Adv Mukul stated three major grounds
- that Mr. Kochhar was not informed of the grounds of arrest which is illegal. He relied on two judgments one of Delhi HC [Rajbhushan Dixit v. Union of India (2018)] and Madhu Limaye of the Supreme Court.
- that filing of ECIR is not the same as filing FIR u/s 154 and 155 of C.r.P.C. as the case may be for initiating an investigation. He argued that chapter XII of C.r.P.C is applicable to PMLA unless it is explicitly excluded by creating an alternative mechanism. For this point, he relied on the judgment of SC in Ashok Munilal Jain v. ED whereby it had held that non-application of Cr.P.C. provisions to PMLA would have a disastrous effect as it would unable exercising of powers of remand u/s 167 C.r.P.C.
- that the Delhi HC has the jurisdiction to entertain the petition since ECIR was made in Delhi and the arrest memo was also made in Delhi and therefore part of the cause of action arose in Delhi.
The ED was represented by Adv Amit Mahajan who told the court that an order was passed by special PMLA court in Mumbai on 3rd October according to which Mr. Kochhar was to be presented before the court within 3 days after his discharge. On the point of jurisdiction Adv. Amit relied on the judgment of SFIU V RAHUL MODI and argued that Delhi HC had no jurisdiction and as per section 44 of PMLA, Mumbai has the jurisdiction as the offence was committed there. He argued that under section 47 of PMLA any orders of the special PMLA court Mumbai could only be challenged before the Court having jurisdiction over such court passing the order.
On the ground of application of Chapter XII C.r.P.C on PMLA, he said that the case of Vakamulla Chandrashekhar v. Enforcement Directorate would prevail in the absence of any other authoritative pronouncement.
On the point of interim bail, Adv Mahajan said that the petitioner should have filed a bail application under section 439 of C.r.P.C and not under article 226 of the constitution.
Opposing this point Adv Rohatgi said that the relief sought was quashing of the arrest the ensuing custody and remand as illegal and the bail was sought as interim relief.
After listening to all the grounds and objection Justice Bhambani passed an order for ED to file a status report on the plea made by Deepak Kochhar.
The hearing of the matter is next listed on 14th October.
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