ICICI -Videocon Case: Delhi HC Seeks ED Response On Deepak Kochhar's Plea For Interim Bail

The Delhi High Court on Thursday sought the response of the Enforcement Directorate to the plea made by Deepak Kochhar in the ICICI-Videocon case under the Prevention of Money Laundering Act.The petitioner was represented by Sr. Adv. Mukul Rohatgi while the Enforcement Directorate (ED) was represented by Adv. Amit Mahajan. The court passed an order for filing of a status report by the Enforcement Directora on jurisdictional maintainability of the current writ petition challenging the arrest and subsequent custody and remand of Deepak Kochhar as well as the interim relief of bail and other connected prayers sought by the petitioner. Mr. Deepak Kochhar was arrested by the ED on September 7, 2020 in the ICICI Bank-Videocon loan fraud case under Prevention of Money Laundering Act (PMLA) and was remanded to ED's custody till September 19, 2020 by a special PMLA court in Mumbai. Pursuant to the same, he was taken to Delhi for questioning in connection with the case. He then tested positive for COVID-19 and was thus admitted to AIIMS Delhi from where he was referred to NCI, Jhajjar. The ED had obtained an order of transferring Deepak Kochhar to judicial custody during his treatment period so as to not lose out on the time granted by the court to interrogate Kochhar in its custody. The Mumbai court on September 14, 2020 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. A plea filed by him before the Delhi High Court seeking to be shifted to a private hospital at his own expense was declined to be entertained by Hon'ble Justice Bhambani on September 17, 2020 on the ground that, Kochhar was presently under the judicial custody of Special PMLA court in Mumbai and the Delhi High Court can't shift him from one place to another. Petition was dismissed as withdrawn as the petitioner sought to move the concerned Mumbai Court for seeking the order of transfer given that ED had no objection to such transfer of Deepak Kochhar to private Hospital. On September 19, 2020 the special PMLA court Mumbai allowed Deepak Kochhar to be shifted to a private hospital for treatment. Currently Mr. Kochhar is undergoing treatment in Apollo Hospital in Delhi. The present Writ petition is filed before the Delhi High Court under Article 226 of the Constitution challenging the arrest of Deepak Kochhar by the ED and the subsequent custody and remand as illegal. Senior Advocate Mukul Rohatgi argued on three major grounds. First, that the arrest undertaken without informing the person of the grounds on which it was being carried out is illegal. He sought to rely on the judgement of the Delhi High Court delivered in Rajbhushan Dixit v. Union of India (2018) for the same. He also relied on the Supreme Court judgement of Madhu Limaye for arguing that if the arrest itself was illegal the subsequent custody and remand would also become illegal. Secondly, he argued that Chapter XII of Cr.P.C. is applicable to PMLA unless PMLA explicitly excludes the same by creating alternative mechanism. He argued that filing of an ECIR is not equivalent of FIR which he sought to argue was mandatory u/s 154 or permission of Magistrate u/s 155 of the Cr.P.C. as the case may be for initiating an investigation. He relied on the observation of Supreme Court in Ashok Munilal Jain v. ED whereby it had held that non-application of Cr.P.C. provisions to PMLA would have disastrous effect as it would unable exercising of powers of remand u/s 167 Cr.P.C. Replying to the query posed by the bench relating to registration of ECIR and it being an off-shoot of FIR he replied that it was a self-invented instrument with no legal genesis and is secret document in ED's office. He argued that ED was required to register FIR and can't proceed to arrest based on ECIR. The Senior Adv proceeded to quote a number of sections from Chapter XII of Cr.P.C. to argue that ED was selective in choosing which provisions of Cr.P.C. in its procedures relying on few while denying others and the same is not permissible. He concluded his submission by stating that to orally quote the grounds of arrest in PMLA cases running into 3-4 pages to the person is beyond acceptable. The bench had raised a query that, since two decisions of the coordinate benches of Delhi HC namely Moin Akhtar Qureshi v. Union of India and Vakamulla Chandrashekhar v. Enforcement Directorate were contrary to each other and Rajbhushan Dixit sought to be relied upon by Sr. Adv. Rohatgi was referred to a larger bench with no decision on the same and there is no decision of the Supreme Court in this matter either, then what considerations should this bench be guided by in deciding the present writ petition.Rohatgi responded that court should lean in favour of liberty and in the present write petition he argued that Article 21 of the petitioner was...

ICICI -Videocon Case: Delhi HC Seeks ED Response On Deepak Kochhar's Plea For Interim Bail

Karan Tripathi

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